Citation Nr: 21041758 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-03 559 DATE: July 10, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active service from October 2001 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter was previously denied by the Board in a January 2019 decision, along with claims of service connection for a bilateral ankle disability, bilateral hearing loss, and vertigo. Thereafter, the Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Memorandum Decision, the Court held that vacatur and remand of the January 2019 Board decision was necessary, relating only to the within issue of entitlement to service connection for a back disability. The Court found that the Board erred by relying on an inadequate VA examination opinion from June 2016 in denying service connection, as the examiner failed to account for relevant details in the Veteran's medical history. Specifically, the VA examiner did not take a June 2003 report of back pain into account when forming his opinion. The Court further stated that the examiner failed to discuss the Veteran's September 2015 statement reporting a recurrent back condition since service, which appeared to conflict with the examiner's conclusion. The Court concluded that remand is required for further development, including an adequate examination that considers the evidence of record, including the Veteran's post-deployment health assessment, VA treatment records, and her lay testimony. Accordingly, remand is necessary for development consistent with the Court's Memorandum Decision. The matter is REMANDED for the following action: Refer the claims file to an appropriate medical professional to provide an addendum opinion as to whether the Veteran's current back disability is at least as likely as not related to active service. The examiner should review the file and be provided with a copy of the facts below. If the examiner believes that an in-person examination is needed to provide an informed opinion, then schedule an examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from October 2001 to October 2005. The Veteran has alleged that her current disability of degenerative arthritis in the spine had its onset in or is otherwise caused by her active military service. The June 2001 entrance examination report shows the Veteran received a normal clinical evaluation of the spine and other musculoskeletal system. See VBMS entry with document type, "STR Medical," receipt date 12/01/2005, with "#1" in the subject field, p. 122 (item 36). The Veteran was deployed to the Persian Gulf during Operation Iraqi Freedom from February 2003 to May 2003. On a June 2003 post-deployment health assessment, the Veteran stated that her current health was excellent and that she did not have any medical problems during deployment. She reported that she experienced symptoms of back pain during deployment but denied any current back pain symptoms. See VBMS entry with document type, "STR Medical," receipt date 12/01/2005, with "#1" in the subject field, pp. 81-84 (back pain reported at item 6 on p. 83). In September 2003, the Veteran reported low back pain during the past week with no precipitating trauma or injury. She denied any previous similar pain. On physical examination, a lipoma was found. She was diagnosed with a symptomatic back lipoma and told to return if symptoms persisted. See VBMS entry with document type, "STR Medical," receipt date 12/01/2005, with "#1" in the subject field, p. 79. The September 2005 Report of Medical Assessment completed at service discharge shows the Veteran documented that her health was the same as during her June 2001 entrance examination. She stated that she did not suffer any injury or illness during active service for which she did not seek medical care. See VBMS entry with document type, "STR Medical," receipt date 12/01/2005, with "#1" in the subject field, p. 31. A September 2005 service treatment record shows that a physician documented the only significant interval change in the Veteran's medical history to be a right shoulder impingement. The Veteran was found physically qualified for separation. See VBMS entry with document type, "STR Medical," receipt date 12/01/2005, with "#1" in the subject field, pp. 29-30. A September 2009 VA treatment record shows the Veteran reported right lower back pain. She stated that it started "after having to carry 40+ lb equipment when was in [N]avy and only weighed appr[oximately] 110 lbs." The treatment record shows she weighed 141 pounds in September 2009. See VBMS entry with document type, "CAPRI," receipt date 08/28/2019, with "#2" in the subject field, pp. 90-91. In a September 2015 statement, the Veteran reported that her duties during active service consisted of performing repairs, maintaining and stowing aircraft and associated equipment in preparation for flight operations, performing ground and deck duties involved in the take-off and landing of aircraft, standing security watches on flight lines or decks, and temporary duty for 90 to 120 days with the food services division. These duties included lifting 45-pound chocks and four to eight chains, each weighing two to three pounds. She stated that the extreme weightlifting and bending under aircrafts caused her lower back to become painful and swell on the right side. She stated that her disability started while on active duty and has persisted and worsened since that time. See VBMS entry with document type, "Correspondence," receipt date 09/23/2015, with "Veteran's Statement" in the subject field, p. 2. A June 2016 VA examination report shows the examiner concluded that it was less likely than not that the Veteran's current back condition was incurred in and/or caused by back pain with swelling that occurred while on active duty in the U.S. Navy. As a rationale, the examiner wrote, "Medical note by Dr. Saltzstein on 9/16/2003 shows Dx of a symptomatic lower back lipoma without treatment. There is no documented medical evidence of any back condition during active military duty. Today's radiologic findings of thoracic spine DJD do not impact function of the thoracolumbar spine. Physical exam of the back testing [range of motion] was unremarkable without pain or discomfort. DJD of the thoracolumbar spine is a normal process of the aging condition and is unrelated to the claimant's military service. The claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." See VBMS entry with document type, "C&P Exam," receipt date 06/30/2016, with "DBQ MEDICAL OPINION Back" in the subject field, pp. 1-3. The June 2016 clinical findings pertaining to the spine are in a separate report. The examiner entered a diagnosis of degenerative arthritis of the spine. See VBMS entry with document type, "C&P Exam," receipt date 06/29/2016, with "DBQ MUSC Back" in the subject field. A June 2016 thoracic spine x-ray shows an impression of 15 to 20 percent loss of height anteriorly at T8-9. Minimal spondylosis from T7 to T11. See VBMS entry with document type, "C&P Exam," receipt date 06/29/2016, with "Thoracic & Lumbar spine x-rays" in the subject field, p. 2. A June 2016 lumbar spine x-ray shows an impression of no loss of height of vertebral bodies. See VBMS entry with document type, "C&P Exam," receipt date 06/29/2016, with "Thoracic & Lumbar spine x-rays" in the subject field, p. 2. The June 2016 examiner did not specifically address the Veteran's June 2003 report of back pain during deployment, or her lay statements regarding the etiology of her condition, as documented in her September 2015 statement. Thus, the Board is seeking an addendum opinion so that the examiner can consider these additional facts. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. After a review of the file, the examiner is asked to answer the following question based upon the evidence of record and sound medical principles: Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's current back disability had its onset in service or is otherwise related to her service from October 2001 to October 2005, to include back pain and swelling that was documented while on active duty? Please state upon what facts, medical principles, and/or medical literature support the opinion. In rendering the above opinion, the examiner should specifically comment on the June 2003 service treatment record showing the Veteran reported back pain during a recent deployment, as well as her September 2015 statement that she has had a recurrent back condition since her time in service. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.