Citation Nr: 22008508
Decision Date: 02/15/22	Archive Date: 02/14/22

DOCKET NO. 15-27 637A
DATE: February 15, 2022

REMANDED

Entitlement to service connection for a lumbar spine condition, to include as secondary to the service-connected cervical spine condition, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1964 to July 1968 and January 1991 to May 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a January 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file.

This matter was remanded most recently in October 2021 to obtain substantial compliance with the Board's prior remand directives. The RO obtained an addendum medical opinion in December 2021. Unfortunately, the opinion is inadequate, requiring further remand. Specifically, the examiner determined that "[t]here is no evidence of a back condition within one year of service or until in or around 2015, 20+ years post-service"; however, the Veteran's private treatment records document diagnosis of a lumbar spine condition in February 2003, and his VA treatment records document complaints of low back pain and treatment for a lumbar spine condition starting in February 2004. As this opinion is based on an inaccurate factual basis, it is inadequate, and the Board may not rely on it. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). While the Board sincerely regrets the additional delay, another remand is necessary to obtain an accurate and adequate addendum opinion and afford the Veteran due process of law.

On remand, the examiner must review the complete claims file, including private and VA treatment records documenting a lumbar spine condition as early as February 2003, to ensure they provide an adequate addendum opinion. 

The matter is REMANDED for the following action:

Return the claims file to December 2021 examiner, or another examiner if they are unavailable, to obtain an addendum medical opinion that complies with the Board's current and prior remand directives.

The examiner should review the claims file, specifically including:

	the private medical opinions, with receipt dates of 5/7/21, and 

	the Veteran's treatment records documenting a lumbar spine condition as early as February 2003 (see private medical records with receipt date of 3/5/03 concerning x-rays of the lumbar spine from February 2003; CAPRI records with receipt date of 6/1/15, at pages 2-3, concerning x-rays of the lumbar spine from 2004 and 2006; and CAPRI records with receipt date of 9/18/15, at pages 87-99, concerning complaints of back pain between February and April 2004).  

Then, the examiner should respond to the following:

(a.) Is it as likely as not the Veteran's lumbar spine condition is related to his active service, to include his MVA in service?

(b.) If the answer to (a) is negative, is it as likely as not the Veteran's lumbar spine condition was caused or aggravated by his service-connected cervical spine degenerative disc disease?

In doing so, the examiner must specifically discuss and reconcile the conflicting medical findings included in Dr. G.F.'s May 2021 medical nexus statement verus the prior March 2019 VA opinion, to include the following:

	that the extent of the Veteran's disc degeneration is far greater than the ordinary degenerative changes; 

	that medical literature, to include a portion of Dr. G.F.'s own research and academic publication, positively indicates an interrelationship between arthritis in different areas of the spine; and 

	that trauma or injury can cause or aggravate degenerative disc disease

All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. 

A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. 

It is not sufficient for the examiner to merely conclude, without rationale as to why, that there is no evidence to support Dr. G.F.'s opinion.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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.