Citation Nr: 21032644 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-31 037 DATE: May 27, 2021 REMANDED Entitlement to service connection for thoracolumbar spine degenerative disease (claimed as back problems) is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from July 1987 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans' Law Judge. A copy of the transcript has been associated with the records. This matter was previously before the Board in March 2020 and remanded for further development including affording the Veteran an adequate VA examination. The matter has returned to the Board for an appellate review. Entitlement to service connection for thoracolumbar spine degenerative disease (claimed as back problems) is remanded. While the Board regrets the delay, additional development is necessary prior to the adjudication of the issue on appeal. The Veteran claims that his back disability is related to his active duty service. Pursuant to the Board's March 2020 remand directives, the Veteran was afforded a VA examination in July 2020. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that even though the Veteran was twice seen in service for a back condition, the claimed back problems were acute only. The examiner noted that there was also no evidence of chronicity of care for twenty years after service. The examiner further noted that the Veteran reported that his back pain is the result of lifting generators while in Somalia, and that records show that he was in Somalia from May to September 1993; but that it is unlikely that lifting objects for a short time period of a few months in 1993 would results in thoracolumbar degenerative disease of the spine or any spine disability. The examiner continued that medical literature does not support that short term heavy lifting would lead to degenerative changes in the spine. The examiner stated that the etiology of spine osteoarthritis is likely secondary to its multifactorial pathogenesis and that etiology includes genetic predisposition, epigenetics, dietary changes, sex, and ethnicity differences; and that patient age, muscle strength, physical activity, and work-related habits are factors in the development of osteoarthritis. With regards to the Veteran's assertions of medications taken during his Somalia deployment as a probable cause, the examiner opined that the medical literature does not support anti-malaria medication could lead to chronic back conditions including thoracolumbar degenerative disease. See July 2020 C&P Examination. The Board finds the July 2020 examination inadequate. It is undisputable that the Veteran claims that he experiences back problems in Somalia. However, from review of the records, lifting of heavy machinery/generator was not limited to the Veteran's five (5) months of active duty service in Somalia. The Veteran's military occupational specialty (MOS) was quartermaster and chemical equipment repairer. His duties included weapons repair and fixing small or heavy generators which required lifting and/or bending over on a regular basis, to pick up equipment. See August 2019 Hearing Transcript. Therefore, the July 2020 examiner's statement that the Veteran lifted heavy objects for a limited time only , is inaccurate and the Board cannot rely on her opinion to adjudicate the Veteran's claim. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). In September 2020, the Veteran's private physician M.M.I.S., DO submitted a nexus opinion. She noted that the Veteran is currently being treated at the University of Colorado Spine Center for back pain, which the Veteran indicated started in 1993. The physician stated that the Veteran now has lumbar DDD which could have started at the time of his initial injury in the Military, however, is also part of the normal degenerative process. See September 2020 Medical Treatment Record - Non-Government Facility. The Board finds this opinion inadequate for adjudicative purposes because words such as "could" or "may" also imply that something "could not" be possible and are too speculative to establish a nexus, as they do not reflect at least a 50 percent probability. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, a remand is required for an adequate examination that considers the Veteran's entire factual record. The matters are REMANDED for the following action: 1. Obtain and associate updated VA treatment records with the claims file. 2. Schedule the Veteran for a VA examination by an examiner of sufficient expertise to determine the nature and etiology of his thoracolumbar spine degenerative disease. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. All testing deemed necessary by the examiner must be accomplished. Based on the examination results and a review of the record, the examiner should address the following: Whether the thoracolumbar spine degenerative disease is at least as likely as not (50 percent probability or greater) etiologically related to the Veteran's active duty service. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner must consider all relevant lay and medical evidence of record, including the buddy statements submitted by the Veteran's fellow service members, as well as his hearing testimony and post-service treatment records. The examiner is reminded that the absence of contemporaneous treatment records, alone, is an insufficient basis for a negative medical nexus opinion. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. Thereafter, readjudicate the Veteran's service connection claim and if the claim is not granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and an appropriate time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.