Citation Nr: 21031017 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-11 541 DATE: May 20, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1981 to November 1993. This case is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In March 2015, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. In October 2015, the Board remanded the case for additional development. A February 2018 Board decision denied service connection for a low back disability, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2018 Order, the CAVC granted an October 2018 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the terms of the JMR. In April 2019, July 2020, and December 2020, the Board remanded the case for additional development. Entitlement to service connection for a low back disability The Board is aware that this matter has been remanded several times since returning from the CAVC (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020, the Board remanded this matter for an advisory medical opinion (by a medical provider who had not previously provided an opinion in this matter) regarding the likely etiology of the Veteran's low back disability. [Notably, the October 2018 JMR suggested a new examination which considered the Veteran's lay reports/testimony of intermittent low back pain since service was necessary. Examination reports after the JMR were noted to be inadequate due to their speculative nature/conclusions and due to failure to address the Veteran's lay statements.] The remand directed that the rationale for any opinion must address the Veteran's lay statements (for example, his August 2013 and May 2016 statements and his March 2015 hearing testimony) regarding injury to (and pain in) his low back in service and intermittent low back pain since then. The remand also advised the consulting provider that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service. In January 2021, a (fee basis) family practice physician reviewed the record and provided a negative nexus (to service) opinion. He wrote that his medical record review revealed "records consistent only with" lumbar pain/strain and lumbar degenerative disc disease (DDD). He continued, "The [Veteran's] low back condition is independent and separate from active military service. It is less likely than not that it began in (or is otherwise etiologically related to) the Veteran's military service, to include as due to a fall from a rope bridge, participation in ruck marches, jumping from vehicles and helicopters, and carrying heavy mortars." In a March 2021 addendum opinion, the provider acknowledged lumbar spine diagnoses of osteoarthritis, IVDS, lumbar strain, lumbosacral strain, lumbar dysfunction syndrome, lumbar spondylosis, and chronic low back pain with bilateral sciatica symptoms. He again provided a negative nexus opinion and wrote, "The etiology of the multiple back conditions is secondary to joint aging and chronic over use (sic) of the spine and back over duration of many years and is independent from [the Veteran's] active military career." The Board finds that the opinions are inadequate for rating purposes. Neither opinion addresses the Veteran's lay statements/testimony of intermittent low back pain since service, as directed. Furthermore, both opinions are conclusory as they lack adequate rationale; the examiner did not explain why the etiology of the Veteran's back disability is aging/overuse (versus as due to military service, or an alternative etiology, did not cite to the factual data and medical principles that support the conclusion). Accordingly, remand for another, adequate, medical opinion is necessary. The matter is REMANDED for the following: 1. Secure for the record complete updated (any not already in the record) clinical records of all VA evaluations or treatment the Veteran has received for his back disability. 2. After the development requested above is completed, arrange for the Veteran's claims file to be forwarded to an appropriate clinician (in orthopedics, e.g., and other than the January 2021/March 2021 provider) for review and advisory medical opinion regarding the likely etiology of his low back disability. The entire record (to include this remand and prior VA back examinations) must be reviewed by the provider. [If further examination of the Veteran is deemed necessary, such should be arranged.] The consulting provider should respond to the following: (a) Identify (by diagnosis) each low back disability found on examination/shown during the pendency of the claim. [If lumbar spine osteoarthritis, IVDS, lumbar strain, lumbosacral strain (diagnosed on March 2016 VA examination), lumbar dysfunction syndrome, lumbar spondylosis, or chronic low back pain with left and right sciatica symptoms (noted in VA physical therapy and primary care records) are not diagnosed, reconcile such finding with the notations in the record cited above.] (b) Identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it began in (or is otherwise etiologically related to) the Veteran's military service, to include as due to a fall from a rope bridge, participation in ruck marches, jumping from vehicles and helicopters, and carrying heavy mortars? The consulting provider should explain the rationale for all opinions, citing to supporting factual data, as deemed appropriate. The rationale should acknowledge (reflect consideration of) the Veteran's lay statements (see, for example, his August 2013 and May 2016 statements and his March 2015 hearing testimony) regarding injury to (and pain in) his low back in service and intermittent low back pain since then. (If statements are rejected as not credible, the provider should explain (cite to) the clinical findings/medical principles that support that conclusion). The provider is advised that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service, but providing an [alternate] likely etiology, beyond any assertion that there was no documentation of the claimed disability during service and for years after service, may overcome this. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, Counsel 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.