Citation Nr: 21042815 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-45 923 DATE: July 13, 2021 REMANDED Entitlement to service connection for a back condition, to include spondylosis of the fifth vertebrae, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to April 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In March 2019, the Veteran presented testimonial evidence at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. Addressing the relevant procedural history, this case was previously before the Board in August of 2019 at which time it was remanded for additional development, to specifically include obtaining an addendum opinion from a VA examiner. The case has now been returned to the Board for further development. Unfortunately, an additional remand is necessary. In its August 2019 remand, the Board instructed that the clinician who wrote the addendum opinion on remand should opine whether the Veteran had a back condition that clearly and unmistakably pre-existed the Veteran's entrance into military service and, if so whether there is clear and unmistakable evidence that the disorder was not aggravated by service. The clinician was instructed to offer an opinion in regard to service connection on a direct basis only if it was first determined that the claimed back condition did not clearly and unmistakably pre-exist service. In contrast, the clinician who authored a VA opinion in December of 2019 stated that "it is my opinion that the veteran's back condition is not related to service from February 28, 1974 to April 18, 1974 (approximately 50 days). Although the veteran was seen for back pain while in service, an x-ray to evaluate the complaint noted spondylosis of the fifth lumbar vertebrae. Spondylosis refers to degenerative changes, this condition happens over a period of time; thus his condition most likely was pre-existing as it is highly unlikely that the veteran spondylosis was due to his 50 days of military service. Also review of the veteran' limited service treatment records does not support that the condition was aggravated beyond its natural progression." Based on the foregoing, the actions undertaken on remand do not complete the Board's August 2019 remand directives. See 38 U.S.C. § 5103A (b); Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, this does not address the correct legal standard. Therefore, the Board cannot make a fully-informed decision on the Veteran's back claim until this issue is remanded again for an additional opinion. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician, who should be, if possible, the clinician who provided the December 2019 VA opinion. The clinician must be provided with and review the entire claims file, to include a copy of this remand, and it should be confirmed that such records were reviewed. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should answer the following in regard to the Veteran's claimed back condition, to include spondylosis of the fifth vertebrae: (a.) Whether (i) the Veteran's asserted back condition clearly and unmistakably pre-existed the Veteran's entrance into military service; and, if so (ii) whether there is clear and unmistakable evidence that the disorder was not aggravated by service (worsened beyond its natural progression). The clinician should consider the in-service Medical Board proceedings, documented early separation from service and asserted in-service treatment for a low back condition. (b.) If the clinician determines that the claimed back condition did not clearly and unmistakably pre-exist service he/she should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current back condition onset was during or is causally related to his active military service, to include the in-service Medical Board proceedings, his documented early separation from service and asserted in-service treatment of low back complaints. A complete rationale should be offered for all opinions provided. The clinician is also advised that the absence of medical records corroborating an in-service injury or disease cannot be used as the sole basis for finding that there is no nexus between a current disability and the Veteran's military service and will necessitate an additional remand for a new opinion. 2. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.