Citation Nr: 21040779 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-04 713A DATE: July 7, 2021 REMANDED The issue of entitlement to service connection for a back disability, to include degenerative arthritis of the spine, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2006 to August 2009. In January 2020, the Veteran testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2020, this appeal was remanded for additional development. Following the remand, the issue of service connection for degenerative joint disease (DJD) C5/6 and C6/7 was granted. See Rating decision, September 2020. This constitutes a full grant of the benefit sought, and the issue is no longer before the Board. Following the grant of service connection for DJD C5/6 and C6/7, the AOJ issued a second rating decision proposing to sever service connection. See Rating decision, September 2020. The Board notes that the Veteran has requested a hearing regarding this proposed severance. See Correspondence, October 2020. However, as the hearing does not pertain to the issue on appeal, the Board will proceed with development. The issue has been expanded and recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a back disability. The Board finds that additional development is needed prior to final adjudication of the remaining issue on appeal. Specifically, the Board finds that a new VA opinion is needed that adequately addresses the Veteran's claimed disability and a potential nexus to service. The Board finds the September 2020 VA opinion to be inadequate. This opinion states that the "Veteran does NOT complain of lumbar/low back pain" and "[t]herefore, his DJD of the lumbar spine is considered an 'incidental finding'." (Emphasis in original). However, the record reflects complaints of lower back pain. For example, the May 2017 VA examination report states that the Veteran's medical history includes "[g]radual onset of lower back pain which began during deployment to Iraq . . ." It also reports that the Veteran "[s]tates that he has lower back pain on a daily basis which is moderately-severe." Accordingly, the Board finds that a new VA opinion is needed that adequately addresses the evidence of record. Further, the Board notes that the Veteran has a diagnosis of degenerative arthritis (mild) of L5/S1. See VA examination report, September 2020. The Board finds that a new opinion is needed that addresses the etiology of this diagnosed disability. Similarly, the Board acknowledges the addendum VA opinion from September 2020, but finds that a new opinion is still needed. Specifically, the Board seeks an opinion that fully addresses the Veteran's contentions regarding in-service injury. The Veteran's DD 214 notes that he received a Driver and Mechanic Badge with Driver Wheeled Vehicle(s) Clasp. In an October 2020 statement, the Veteran writes: Consistent & unusual carrying weight throughout the 15 months in Iraq wrecked my cervical & thoracic column as an infantryman. When not conducting foot patrols, we would perform mounted patrols being jarred around in our Humvee and/or spend weeks at a time sitting in a Humvee with full kit weighing down on your shoulders, thus, straining cervical & thoracic spine. At the January 2020 videoconference hearing, the Veteran described extended periods being ". . . wrapped in a Humvee, with the, the distance between the bags and the, the IBA and the weight of it was pushing and, and the height of my traps was constantly pushing me forward, pulling me down. My, I was basically laying down on my cervical thoracic lumbar." The September 2020 addendum VA opinion does not address these contentions. Further, the Board seeks clarification regarding a 2013 motorcycle accident. A private opinion, received in October 2016, states that the Veteran "indicated that he first developed the mid thoracic pain during his tour in Iraq in 2008-09 while bouncing around in the Humvee's [sic]. The pain worsened after a motorcycle accident in August of 2013." However, the September 2020 VA addendum opinion states that "even though the Veteran downplays the 2013 motorcycle accident, it's contribution to his pain and arthritis cannot be dismissed." The Board asks that in the new VA opinion, an examiner clarify whether the motorcycle accident is the cause of a present disability, or if it aggravated an already existing disability from service. Also, the Board notes that in his post-Iraq deployment health assessment, October 2008, the Veteran indicates that he went to sick call for muscle aches and back pain, and that he is still bothered by these symptoms. This record should be considered by an examiner. In addition, the Board asks that an opinion be obtained that addresses service connection on a secondary basis. At the January 2020 videoconference hearing, in describing the onset of his claimed disability, the Veteran stated that "I tweaked my right knee . . . with a hard landing. Thereafter, it was just, kind of, a snowball effect." The Board notes that the Veteran is service connected for status post right knee posterior patella fracture. See Rating decision, June 2017. Based on these statements, the Board asks that an opinion be obtained that addresses whether the Veteran's claimed back disability may be connected to his service-connected right knee disability. Finally, the Board notes that a photocopied image of a CD appears in the electronic record in July 2017. Handwritten on the CD are the words "medical record" and "PDF." The Board acknowledges that on the same date the CD was received by the VA claims intake center, medical records were also added to the file. However, upon remand, the Board asks that it be confirmed that the medical records received on the same day as the CD are the same records as those contained in the CD. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any service, VA and/or private treatment records, pertaining to the issue on appeal. The Board notes that a photocopied image of a CD appears in the electronic record in July 2017. Handwritten on the CD are the words "medical record" and "PDF." The Board acknowledges that on the same date the CD was received by the VA claims intake center, medical records were also added to the file. However, upon remand, the Board asks that it be confirmed that the medical records received on the same day as the CD are the same records as those contained in the CD. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule a VA examination to clarify the diagnosis of his claimed back disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address: (a) the Veteran's complaints of lower back pain (see VA examination report, May 2017); (b) the diagnosis of degenerative arthritis (mild) of L5/S1 (see VA examination report, September 2020); (c) the Veteran's description of in-service injury as described above; (d) the Veteran's post-Iraq deployment health assessment, October 2008, in which he indicates that he went to sick call for muscle aches and back pain, and that he is still bothered by these symptoms; and (e) the Veteran's statement that he "several times . . . had to be prescribed muscle relaxers due to upper back/neck problems while in Iraq. Problem persists today." (see NOD, January 2016). In addition, the Board asks that the examiner address contentions regarding a 2013 motorcycle accident. A private opinion, received in October 2016, states that the Veteran "indicated that he first developed the mid thoracic pain during his tour in Iraq in 2008-09 while bouncing around in the Humvee's [sic]. The pain worsened after a motorcycle accident in August of 2013." However, the September 2020 VA addendum opinion states that "even though the Veteran downplays the 2013 motorcycle accident, it's contribution to his pain and arthritis cannot be dismissed." The Board asks that in the new VA opinion, an examiner clarify whether the motorcycle accident is at least as likely as not the cause of a present disability, or if it is at least as likely as not aggravated an already existing disability from service. In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed back disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's service-connected right knee disability. In particular, the Board asks that an examiner address the Veteran's statements at the January 2020 videoconference hearing, at which he stated that "I tweaked my right knee... with a hard landing. Thereafter, it was just, kind of, a snowball effect." The Board notes that the Veteran is service connected for status post right knee posterior patella fracture. See Rating decision, June 2017. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. (Continued on next page) 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.