Citation Nr: 21031357 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-13 420 DATE: May 21, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, claimed as secondary to a lumbar spine disorder is remanded. Entitlement to service connection for radiculopathy of the left lower extremity, claimed as secondary to a lumbar spine disorder is remanded. Entitlement to an acquired psychiatric disorder, to include depressive disorder, to include as secondary to a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from September 1985 to December 1985, and on active duty from February 1988 to February 1992 and from January 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office. In February 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2019, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for a lumbar spine disorder. As noted in the July 2019 remand, the Veteran contends that he has a lumbar spine disorder that is caused or aggravated by his military service. Specifically, he reported back injuries when lifting camouflage tent poles, repairing tires on a deuce and a half truck, and when lifting heavy objects during his first period of service, which were noted at the time of his October 1991 separation examination. He further alleges that rigorous physical training during service also adversely affected his back. The Veteran's service treatment records (STRs) from his first period of active duty reflect numerous complaints of low back pain and radicular symptoms with a diagnosis of mild scoliosis, which was aggravated by heavy lifting. Additionally, X-rays taken in connection with the April 1992 VA examination showed a transitional L5 and minor, unimpressive levoscoliosis. STRs from the Veteran's second period of service reflect treatment for low back pain in September 2003, and a May 2004 X-ray revealed sacralization of L5 with pseudoarthrosis. Current treatment records reflect numerous diagnoses of a lumbar spine disorder, to include congenital disorders of scoliosis and transitional fifth lumbar vertebra, as well as degenerative disc disease and degenerative joint disease of the lumbar spine. Further, while a February 2013 VA examiner found that the Veteran's lumbar spine disorder, identified as degenerative joint disease, was not related to his military service, and instead was age-related, he did not address the other diagnoses of record. Additionally, while the Veteran's private physician, Dr. AZ, opined in February 2019 that it is at least as likely as not that the Veteran's lumbar spine disorder is a direct result of injuries from strenuous lifting during his military service, he did not address his congenital lumbar spine disorder or provide a rationale for his opinion. Consequently, the Board remanded the claim in order to obtain an addendum opinion addressing such matters. Pursuant to the July 2019 remand, the Veteran was afforded another VA spine examination in November 2019, at which time the examiner diagnosed degenerative arthritis, degenerative disc disease, foraminal stenosis, and a congenital abnormality of left L5-S1 assimilation joint. He noted that there was no evidence of scoliosis on current X-ray or MRI. With respect to the Veteran's acquired lumbar spine disorders, the examiner opined that such were less than 50 percent likely due to his report of chronic back pain documented throughout his STRs and post-service VA treatment records. In this regard, he noted that the Veteran's August 2001 reenlistment examination was silent for a history of back pain despite the fact that the reported injury occurred in 1989, and the current degenerative changes present were common and typical for a male the Veteran's age. The examiner also noted that the Veteran complained of chronic low back pain in August 2004, one month after separation, but did not offer an opinion as to whether arthritis of the lumbar spine manifested within one year of his separation from service in February 1992 or July 2004. With respect to the Veteran's left L5-S1 assimilation joint, which was noted to be a congenital abnormality, the examiner did not specifically indicate whether such was a defect or disease, but he nonetheless found that there was no additional disability due to disease or injury superimposed on such disorder during service and it did not undergo an increased in the underlying pathology during service, i.e., was not aggravated. He also indicated that, if there was an increase in the severity of such disorder, it was likely due to the natural progress of the disease. The Board finds the November 2019 opinion inadequate to decide the claim. In this regard, while the examiner appeared to offer a rationale for his determination that the Veteran's acquired lumbar spine disorders are unrelated to his reported injury in 1989 that occurred during his first period of service, he did not consider whether such were related to his other complaints and injuries during his first and second periods of service, or his rigorous physical training. Moreover, the examiner did not properly address whether the Veteran's left L5-S1 assimilation joint is a congenital defect or disease, offered conflicting opinions regarding whether such increased in severity during service, and did not address whether arthritis manifested within one year of the Veteran's separation from either period of service. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing such matters. 2. Entitlement to service connection for radiculopathy of the right lower extremity, claimed as secondary to a lumbar spine disorder. 3. Entitlement to service connection for radiculopathy of the left lower extremity, claimed as secondary to a lumbar spine disorder. 4. Entitlement to an acquired psychiatric disorder, to include depressive disorder, to include as secondary to a lumbar spine disorder. The Veteran's claims for radiculopathy of the right and left lower extremities and an acquired psychiatric disorder, claimed as secondary to a lumbar spine disorder, are inextricably intertwined with the remanded claim for service connection for a lumbar spine disorder. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of such claims must be deferred pending the outcome of the Veteran's claim for service connection for a lumbar spine disorder. Nonetheless, while on remand, if service connection for a lumbar spine disorder is awarded, the AOJ should undertake any necessary development in regard to whether such disorder caused or aggravated his claimed radiculopathy of the bilateral lower extremities and acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate VA examiner to offer an opinion as to the etiology of the Veteran's lumbar spine disorder. Following a review of the record, the examiner should address the following inquiries: (A) For the Veteran's diagnosed congenital left L5-S1 assimilation joint abnormality, state whether such condition constitutes a congenital or development defect or disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is a disease). (i) If such is a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (ii) If such is a disease, is there clear and unmistakable evidence that it pre-existed service? If so, please identify and explain what clear and unmistakable evidence indicates such conclusion. (a) If so, is there clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of such disorder, is such increase clearly and unmistakably due to the natural progress of the disease? (b) If not, is it at least as likely as not (i.e., a 50 percent or greater probability) that the disorder is directly related to the Veteran's military service, to include his reported in-service back injuries and/or his rigorous physical training? (B) For all other diagnosed lumbar spine disorders, to include degenerative arthritis, degenerative disc disease, foraminal stenosis, is such at least as likely as not (i.e., a 50 percent or greater probability) directly related to the Veteran's military service, to include his reported in-service back injuries and/or his rigorous physical training? (C) Did arthritis manifest within one year of the Veteran's separation from service in February 1992 or July 2004, i.e., by February 1993 or July 2005? If so, please describe the manifestations. In offering the foregoing opinions, the examiner should consider the following: The Veteran's reported in-service back injuries that occurred when lifting camouflage tent poles, repairing tires on a deuce and a half truck, and when lifting heavy objects, his rigorous physical training during service, and a continuity of back symptomatology since service A March 1990 STR reflecting complaints of low back pain when lifting canopy poles with an assessment of low back pain, with continued complaints documented in November 1990, December 1990, January 1991, and February 1991 A February 1991 STR showing a report of an injury one year previously while weight lifting, reinjury eight months previously, and reinjury three months previously while lifting a tire of a deuce and a half truck, with an assessment of chronic low back pain/muscle strain with a history of postural stress and strain on muscles A January 1991 CT scan showing no evidence of a herniated disc, but a notation of scoliosis October 1991 separation examination reflecting a normal clinical evaluation of the spine, with the exception of mild scoliosis, and a report of low back pain, scoliosis aggravated by heavy lifting April 1992 X-rays showing a transitional L5 and minor, unimpressive levoscoliosis, with a diagnosis of scoliosis on examination A September 2003 STR reflecting a report of a back injury that occurred when the Veteran's five-year-old daughter jumped on it A May 2004 X-ray showing sacralization of L5 with pseudoarthrosis A June 2004 STR reflecting the Veteran's report of low back pain and pain, numbness, or tingling in his legs, with a diagnosis of low back pain A February 2019 opinion where Dr. AZ opined that it is at least as likely as not that the Veteran's lumbar spine disorder is a direct result of injuries from strenuous lifting during service A rationale for any opinion offered should be provided. 2. If service connection for a lumbar spine disorder is awarded, the AOJ should undertake any necessary development in regard to whether such disorder caused or aggravated the Veteran's claimed radiculopathy of the bilateral lower extremities and acquired psychiatric disorder. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, Associate 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.