Citation Nr: 21030749 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-12 839 DATE: May 19, 2021 REMANDED Entitlement to service connection for a thoracolumbar back disorder, to include degenerative disc disease, degenerative joint disease, lumbar strain, and spondylosis with low back pain is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1955 through March 1956 and from January 1957 through December 1958. This matter comes before the Board of Veterans' Appeals (Board) following a Board remand in November 2020. The claim originated from a June 2010 rating decision issued by the Department of Veteran Affairs (VA ) regional office (RO) in Cleveland Ohio, which declined to reopen the claim. The Veteran testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ) in September 2015, and the transcript is associated with the record. In a November 2015 decision, the Board found sufficient new and material evidence to reopen the service connection claim and remanded for further development. After development the Veteran's appeal was denied in a December 2017 Board decision. The Veteran timely appealed the December 2017 denial to the Court of Appeals for Veteran's Claims (Court) and a Joint Motion for Remand (JMR) was issued in September 2018. After the September 2018 JMR, the issues in this appeal were remanded for further development in April 2019 and November 2020. In both remands, the Board found that the Agency of Original Jurisdiction (AOJ) failed to comply with additional evidentiary development consistent with the September 2018 JMR and the Board's remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets the need for further delay, the appeal is remanded. An additional VA examination dated April 2021 is not adequate because the examiner failed to address evidence prior to 1980 and failed to consider or discuss other pertinent lay statements and medical records. Entitlement to service connection for a thoracolumbar back disorder, to include degenerative disc disease, degenerative joint disease, lumbar strain, and spondylosis with low back pain is remanded. The Veteran contends that he experienced continuous back issues since his service. In December 1980 the Veteran filed a claim for his back and listed the dates of treatment as 1957. He indicated that he was treated by Dr. N. in Punta Gordo in November 1979. In December 2009, the Veteran associated two statements from persons who have known him since the early 1960's, and they reported observing the Veteran's chronic back problems. During his September 2015 Board hearing the Veteran testified that he believed his duties in service as a delivery driver moving ammunition boxes contributed to his thoracolumbar back disorder. Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature. See 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303 at 307-10. The Federal Circuit has also clarified that lay evidence can be competent and sufficient evidence of a diagnosis or of the etiology of a particular condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the existence of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). Service treatment records (STRs) indicate that the Veteran was sound upon entry and the Board has concluded that the presumption of soundness has attached. In this regard, his initial enlistment examination into active duty in August 1955 did not note the presence of a chronic back disability. Subsequent STRs include records dating from 1957 (associated with the claims file in June 2014.) A May 1957 note indicated treatment for low back pain after the Veteran slipped on steps. He continued to experience pain until July 1957. The Veteran was instructed to apply heat as treatment. An October 16, 1957 treatment record noted a complaint of "backache" with an impression of "traumatic arthritis", and varying inservice diagnoses of lumbosacral strain and traumatic arthritis. Spine x-rays taken in July 1957 revealed scoliosis. Regarding chronicity, a December 1979 private treatment record showed treatment for back pain, and a January 1980 private treatment record indicated that the Veteran complained of having his first episode of back pain in 1957 and experiencing intermittent back pain since that time. Following service, the Veteran was diagnosed with L5 hypesthesia in February 1982. Since February 1982 the Veteran has sought continued treatment for his thoracolumbar back disorder. Recent examinations reflected that the Veteran had diagnoses of degenerative disc disease and degenerative joint disease. The VA examiners have not adequately addressed whether the Veteran's current back problem is the same as the problem he had during service. The examiner is asked to consider and discuss the Veteran's STRs and the 1957 notes regarding his spine, expressly considering the inservice references to lumbosacral strain, traumatic arthritis, and scoliosis. The VA examiners have not adequately addressed the Veteran's lay statement evidence and medical treatment records regarding chronicity. On remand, the examiner is asked to review and reference all of the evidence with regard to chronicity, including information from the Veteran as well as from the medical records. The examiner is asked to specifically consider and discuss the Veteran's contentions raised at the 2015 hearing and the contentions reflected in the 1979 treatment note. The examiner should comment on the 1957 STRs and should assume that the Veteran was sound upon entry. Service connection for an enumerated "chronic disease" such as arthritis listed under 38 C.F.R. § 3.309(a) can be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. The examiner should consider the applicability of 38 C.F.R. §§ 3.307; 3.309(a). Thus, on remand, the VA examiner must provide an adequate statement of reasons and bases. The examiner's medical report should reference the pertinent lay evidence as well as the medical evidence and incorporate the information fully into the rationale, reasoning, and basis for the medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination other than the examiners who provided the previous opinions, with the appropriate knowledge and expertise to render an etiology opinion concerning the claim for service connection for a thoracolumbar back disorder, to include degenerative disc disease, degenerative joint disease, lumbar strain, and spondylosis with low back pain. The examiner should indicate on the examination report that (s)he has reviewed the folder and the remand before providing the requested opinions. The examiner should not that the Board is considered sound with no finding of any spinal disorder on enlistment in August 1955. The examiner should identify all of the Veteran's current back diagnoses. The presence or absence of any lumbosacral strain, traumatic arthritis and/or scoliosis diagnoses should also be noted. In the event that the current diagnoses conflicts in any manner with previous diagnoses of record, the examiner should reconcile his/her findings with any other findings. The examiner should address whether the Veteran's current back disability diagnoses is related to any back injury sustained during a period of active duty. Specifically reference and discuss the Veteran's current diagnoses with respect to the STR's: a May1957 treatment for low back pain; pain until July 1957; varying inservice diagnoses of lumbosacral strain and traumatic arthritis and spine x-rays taken in July 1957 revealed scoliosis; October 16, 1957 "backache" with an impression of "traumatic arthritis". The examiner should consider and address the lay evidence from the Veteran and statements, including but not limited to a December 1979 treatment record reflecting reports of back pain since service, a 1980 claim filed by the Veteran for his back disability, statements of persons who knew the Veteran since the 1960's reported observations of Veteran's chronic back pain, and Veteran's 2015 Board testimony that his thoracolumbar back disorder originated from moving ammunition boxes in service. The examiner is asked to review and reference all of the evidence with regard to chronicity, from the Veteran as well as medical records. The VA examiner must provide an adequate statement of reasons or bases that considers the applicability of 38 C.F.R. §§ 3.307; 3.309(a): Service connection for an enumerated "chronic disease" such as arthritis can be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. The examiner's medical report should fully reference both the lay evidence and the medical evidence completely in the rationale, reasoning, and basis for the medical opinion. The examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that any diagnosed lower back condition: (a) Began during active service; or (b) Manifested within one year after discharge from service; or (c) Was noted during service with continuity of the same symptomatology since service. A complete rationale for any opinion expressed should be provided. The examiner should reconcile any contrary medical evidence of record. The examiner should also address the Veteran's lay assertions. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. If the examiner concludes that it is unlikely that the Veteran's spine disorder is related to any in-service event, the examiner should thoroughly explain the reasons why (s)he believes that such a relationship is unlikely. 2. The RO should review the examination report to ensure compliance with the directives of this remand. If any report is deficient in any manner, it should be corrected. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.M. Schneider The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.