Citation Nr: 21032067 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-29 794 DATE: May 25, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1971 to July 1974 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA). In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In August 2019, the Board remanded the Veteran's claim. Entitlement to service connection for a lumbar spine disability. The Veteran, and his representative, contends that his lumbar spine disability stems from basic training. See Hearing Transcript (January 2019). In this regard, the Veteran argues that during basic training he was going through the bars like a ladder and twisted the wrong way, resulting in him feeling something twist in his back like a rubber band and in him falling to the ground. Id. He stated that his back pain continued through service with periods of excruciating pain. Id. He reported pain continuing after service but stated that he waited too long to get treatment until he was "totally immobile." Id. The Board finds that there has not been substantial compliance with its prior remand. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Although a VA medical examination and opinion were obtained in February 2021, the medical opinion is inadequate as it did not fully answer the Board's questions. By way of background, service treatment records (STRs) reflect normal findings at enlistment in July 1971 and separation in March 1974. See STR Medical (July 2012). Post-service medical records, dated in August 2001, reveal that the Veteran was assessed with lumbar radiculopathy and a massive disc herniation at L4-5 with migration. See Medical Treatment Record Non-Government Facility (March 2014). At the initial consult, it was noted that the Veteran reported onset of left lumbar pain about two years earlier, which cleared and the recurred two weeks prior to the August 2001 consult and moved to the right side of the back. See id.; Congressional (January 2020). He underwent a partial hemilaminectomy in August 2001. Id. A VA treatment note dated in July 2018 reflects a medical history for degenerative disc disease of the L4-L5 region. See CAPRI (February 2019). VA examination report, dated in February 2021, reveals that the Veteran was diagnosed with lumbar arthritis, intervertebral disc syndrome (IVDS) and status post hemilaminotomy/facetectomy L4-5. In the corresponding medical opinion, the examiner found the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The Board finds the February 2021 VA medical opinion is inadequate. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. The February 2021 VA medical opinion is inadequate, first, because the opinion reflects that the examiner relied on the absence of medical treatment records from service separation until 2001, when the Veteran was diagnosed with a chronic lumbar spine disability. It is noted that certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Here, the record reflects that the Veteran has reported continuity of low back symptomatology since service. See Hearing Transcript (January 2019). It is noted that the clinician is not required to accept the Veteran's theory that his military service caused his lumbar back disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Next, the opinion is inadequate because it does not reflect a meaningful discussion of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). In this instance, the opinion's rationale, for the most part, is limited to solely the medical evidence. In this regard, the Board notes that much, if not all, the evidence listed, or referenced, in the opinion is of a medical nature. The examiner even states that "based on the lack of medical record of evidence, the veterans [sic] current diagnoses and while taking into account the veteran's statement...". Mere statement that the Veteran's statements were reviewed does not reflect actual consideration of the Veteran's lay reports and instead shows reliance on the absence of medical evidence. Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239 (2012) (recognizing that the absence of evidence cannot be substantive negative evidence without "a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact."). It is noted that the Veteran, as a lay person, is not competent to opine on the etiology of his disability; however, he is competent to report signs and symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the absence of a meaningful discussion of this evidence does not show awareness of seemingly relevant facts and therefore casts doubt on the medical opinion's foundation for the negative linkage opinion. Third, although the opinion noted the passage of time since service separation and the first documented treatment for any lumbar spine problems, the opinion does not answer the question the Board posed in its remand directives whether any arthritis at least as likely as not manifested within one year after discharge. See Stegall, supra. The opinion incorrectly assumed that treatment within one year of discharge is required, while such is not necessary. The Board requested that the Veteran's lay statements are considered, not merely treatment. Given the above, the Board may not rely on the VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Therefore, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2021 to the Present. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any lumbar spine disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The examiner must opine on: (a.) Whether any lumbar spine disability is at least as likely as not related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his current disability is proximately due to or the result of a basic training incident (i.e. he testified that he was going through the bars like a ladder and twisted the wrong way, resulting in him feeling something twist in his back like a rubber band and in him falling to the ground). Explain. (b.) For arthritis of the lumbar spine, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider and expressly address the Veteran's lay statements concerning continuity of low back symptomatology. Explain. (c.) Indicate whether there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current back disability. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Explain. (d.) If there is another etiology more likely than not to explain the Veteran's current back disorder, please identify and explain. 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.