Citation Nr: 22012002 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 12-00 194 DATE: March 2, 2022 REMANDED Service connection for a back disorder. REASONS FOR REMAND The Veteran served on active duty from December 1968 to January 1969. The case is on appeal from a June 2010 rating decision. A June 2015 Board decision denied the Veteran's claim for entitlement to service connection for a back disorder and service connection for a neck disorder. In a July 2016 order, the United States Court of Appeals for Veterans Claims (the Court) granted a July 2016 Joint Motion for Remand (JMR), vacating and remanding the June 2015 Board decision that denied entitlement to service connection for a back disorder and service connection for a neck disorder. In the JMR, the parties agreed that an October 2013 VA medical opinion was inadequate as to the Veteran's claim for service connection for a back disorder because the examiner failed to provide a rationale for the opinion, and the opinion included inconsistent statements regarding the January 10, 1969 separation examination. The parties agreed a remand was warranted to obtain an adequate examination on the issue of whether the Veteran's lumbar spine disability was aggravated beyond the normal progression of the disability during service and to address the Veteran's claim for service connection for a neck disorder as secondary to the lumbar spine. Pursuant to the Court's July 2016 Order, a December 2016 Board decision remanded this claim for additional development. In April 2018, the Board denied the claims of service connection for back and neck disorders. Subsequently, in a September 2019 memorandum decision order, the Court set aside that part of the April 2018 Board decision denying service connection for a lumbar spine disability. The Court found that the April 2018 reasons and bases for the denial were inadequate and remanded the claim for additional development. In May 2020, the Board denied service connection for a back disorder. A December 2020 Court order granted a JMR vacating the May 2020 Board decision denying the claim and remanding the matter to obtain a new examination or an addendum opinion. The parties agreed that the June 2017 VA examiner did not support their opinion with rationale, thus the May 2020 Board lacked the clear and unmistakable evidence required to rebut the presumption of aggravation. Pursuant to the December 2020 Court order, an April 2021 Board decision remanded the claim for additional development. In August 2021, the Board again remanded the claim for further development. Service connection for a lumbar spine disorder. The Veteran contends that he has a back disorder as a result of service. In a July 2009 Veterans Application for Compensation, the Veteran reported having a "crooked back" as he was entering service. He reported, however, that an x-ray was normal and he was cleared to enter. Furthermore, he reported that 2 to 3 weeks into basic training, he began having pain in the lower back. Also, he reported that after obtaining treatment, he was informed that he incurred an injury to the lower back. Further, he reported he was later found unfit to serve leading to a service discharge. The crux of the Veteran's argument is that the Board found a preexisting condition of asymmetrical facets and degenerative arthritis of the lumbar spine. However, there was no condition noted in his service records until January 1969, after he entered into service, and there were 2 negative lumbar spine x-rays from December 3, 1968, and December 17, 1968, and there were 2 physicians reports in December 1968 that found no lumbar pathology based on the negative x-rays. In a July 2009 correspondence, the Veteran reported that during a physical examination he was found to have a "crooked spine (lordosis). Also, he reported that before enlistment, he underwent a spine x-ray. The x-ray showed no abnormalities, allowing the Veteran to enter service. Furthermore, he reported that after physical training, he complained about back pain in December 1968 for which x-rays were completed, showing no abnormalities. He reported being prescribed muscle relaxers and placed on limited duty to include not to perform physical training for a week. Moreover, the Veteran reported having additional x-rays performed which found he had developed asymmetrical fact and degenerative arthritis of the lumbar spine. He reported being informed by his treatment providers that the injury causing the back disorder occurred before service notwithstanding previous medical examinations indicating a normal spine. In a November 2009 correspondence, the Veteran added that he had lived in pain with limited movement since 1969. He also reported experiencing difficulty in sitting, standing, or walking for a length of time and it affects his ability to work. In July 2014, the Veteran submitted a medical online article addressing strains, post-injury response in the development of osteoarthritis, and description osteoarthritis. The Veteran reported that the physical training in service involved strenuous calisthenics to include jumping, swinging, twisting. Further, he reported performing other service-related activities to include lifting heavy laundry bags and sudden jumping off a bunk. He also reported not given enough time to recover after reporting and being treated for back problems. The Veteran reported that he was still in pain when he was informed that he was required to complete training to include physical training. The Veteran's service personnel records (SPRs) show that he was a Basic Airman during service 48 days. Also, they show that he was discharged by reason of physical disability. The Veteran's treatment records (STRs) includes a September 1968 pre-induction Report of Medical Examination showing that the spine and musculoskeletal system were marked as normal, but the examiner noted a summary of defects and diagnoses to include "Chronic Lumbago TD." He was scheduled to undergo an X-ray consultation "as early as possible." He was marked as "not qualified for" enlistment. In the associated Report of Medical History, the Veteran endorsed a history of recurrent back pain and having a "crooked back." In the physician's summary and elaboration of all pertinent date, the examiner noted "Back pain x 5 yrs Has lordosis when he bends over gets burning on back [with] prolonged sitting and working. Working normal O.K." A stamp dated December 3, 1968 marked the Veteran as "unfit" for service. The Report of Medical Examination contains a follow-up notation dated in December 1968 stating "see neg radiology report." The check mark for "not qualified" was marked out, and the box for "is qualified" was checked. A new stamp, dated December 4, 1968, marked the Veteran as "fit" for service. The STRs also contain a letter by civilian physician dated December 3, 1968 stating that "[f]rom my examination and x-rays . . . I see no reason why he could not serve in the Armed Forces." The Veteran entered service on December 4, 1968. Later in December 1968, approximately nine days later, the Veteran sought treatment for complaints of low back pain. He reported a history of recurrent low back pain for 5 years prior to entry to service. An impression of scoliosis with mild lordosis was noted. A December 1968 x-ray revealed that other than the Veteran's rotation, no abnormalities of the lumbar spine were identified. The Veteran continued to return for treatment of back pain throughout December 1968. In January 1969, he underwent an orthopedic consultation. A 5-year history of low back pain was noted with recent back pain occurring when the Veteran performs moderate or heavy lifting. Further, the consultation shows that the Veteran reported experiencing low back pain and high thoracic pain since his fought day of "BMT" [acronym undefined, but consistent with "basic military training"]. He reported no improvement with medication and rest. Also, the record shows the physician diagnosed the Veteran with asymmetrical facets with degenerative arthritis of the lumbosacral spine, which resulted in chronic pain and disability. It was noted that the disability existed prior to entry into service; discharge was recommended. The January 1969 separation Report of Medical Examination conforms to the orthopedic consultation's assessment. A January 1969 Medical Board Report also noted the above history and concluded that the medical condition existed prior to entry into service and had not been aggravated by service beyond the normal progression of the disease. He was recommended for discharge for the condition. The Veteran was discharged effective January 20, 1969, due to physical disability existing prior to service established by Medical Board. The Veteran's post-service private treatment records show treatment in May 2009 for complaints of low back pain for years with a service injury and experiencing persistent and radiating pain for the past few months. The attending examiner diagnosed the Veteran "back pain." A December 2009 private physician report shows treatment for back problems. It reported that the Veteran related worsening back pain symptoms aggravated by a motor vehicle accident in December 2008. The physician diagnosed the Veteran with low back pain, lumbar degenerative disc disease, and lumbar facet syndrome, lumbar stenosis. In May 2010, the Veteran was afforded a VA examination for this claim. The examiner noted the diagnoses of degenerative joint disease of the lumbar spine and mild scoliosis. The physician opined that it was less likely than not that the Veteran's lumbar spine disability was aggravated beyond a normal progression of the disease by his active service. The examiner noted that the Veteran served on active duty for six weeks and that his current back disability was more likely related to his post-service career as a boat captain, age, and natural progression of the disease. A VA addendum opinion was obtained in October 2013. The examiner opined that the Veteran's back condition clearly and unmistakably existed prior to service and was not permanently increased in severity by service. The examiner found that service would not give rise to an aggravation of the back when considering the overall unimpaired function of the back from the examination. This physician noted that the Veteran sustained back injuries in 1999 and 2008. The examiner stated that the intervening factors of age and traumatic events would have been more likely to result in any aggravation of his condition, compared to the brief, atraumatic period in service. On a VA examination in June 2017, the examiner noted lumbosacral strain and degenerative arthritis of the spine. The examiner opined that it was clear and unmistakable that the Veteran's back disorder pre-existed service. The examiner noted that the Veteran reported having "a crooked back" during his enlistment physical. The Veteran reported that prior to enlistment, a doctor told him he had lordosis after he hurt his back lifting a palm tree for his family's landscaping business. The examiner further noted that the Veteran's January 1969 x-ray showed degenerative arthritis of the lumbar spine and opined that degeneration of the spine does not occur suddenly in a matter of months, but rather it is a condition that develops over time. The examiner also opined that the lumbar spine disability was clearly and unmistakably not aggravated by the Veteran's active service and was clearly and unmistakably increased due to the natural progress of the disease. Upon review of the medical records and pertinent medical literature, the examiner noted that normal wear and tear is typically the main cause of degenerative changes in the spine, and that the other cause of degenerative arthritis of the spine is trauma, such as lifting heavy objects or impact from a car accident. The examiner pointed out the Veteran's previous occupation as a landscaper noted in his enlistment as a risk factor of degeneration of the spine. The examiner felt the prior history of back pain prior to enlistment was most likely the cause of the low back pain in 1968 and finding of "degenerative arthritis of the lumbosacral spine" in 1969. The examiner also referenced the earliest post-service medical record as showing that the Veteran reported that he hurt his back and neck while boating in 2001, and he had a back injury in 1999. The examiner explained that degenerative changes do not happen immediately and the changes occur with time. Additionally, the examiner noted that back pain that had presented during service was an exacerbation of an already pre-existent condition and there were no records showing fracture or pattern of disability after 1969 that would demonstrate permanent aggravation of the pre-existent back condition. Pursuant to a Board remand, an addendum opinion was obtained in April 2021. The examiner reviewed the claims file. The examiner first opined that the condition was not directly incurred in or caused by service. The examiner then opined that the condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In this regard, the examiner noted that the Veteran had reported recurrent back pain for 5 years on his September 1968 pre-enlistment medical history and a crooked back (scoliosis/lordosis). Further, the examiner noted that the STRs show that he began calling in sick with complaints of back pain in December 1968, 9 days after entering service without reporting any injury or event, then 3 days later, x-rays confirmed a rotation to the right (scoliosis) without any other abnormalities of the spine being noted. The examiner also noted, for instance, that the private medical records document that he subsequently began seeking treatment for his back pain in 2001, 32 years after service, and reported a boating incident. The examiner then noted general medical literature discussing scoliosis and degenerative disc disease. Pursuant to the August 2021 Board remand, the Veteran was afforded another VA examination in December 2021. The examining physician reviewed the claims file. The physician opined that the back disorder is less likely than not incurred in or caused by service. The physician reported that the Veteran was in service from for approximately 6 weeks. The physician explained that arthritis does not typically develop within 6 weeks. Thus, the physician opined it is likely the condition pre-existed service and is therefore less likely due to service. In this regard, the physician noted degenerative arthritis and "asymmetrical facts on x-rays" in January 1969. The physician opined that arthritis is not an acute condition and did not likely develop from the 6 weeks of service but was likely pre-existing given the natural history of the disease. Further, the physician opined that the back disorder was less likely aggravated beyond natural progression as there was not sufficient time in service to aggravate the condition. The Board finds the August 2021 VA examiner's opinion is nonresponsive to the questions asked by the Board's last remand. The Board asked the examiner to address whether a lumbar spine condition clearly and unmistakably existed prior to service and, if so, whether it was clearly and unmistakably not aggravated by service. The VA examiner opined only that the back condition "likely" preexisted service and was "less likely" aggravated. The degrees of likelihood used by the examiner were in degrees of likelihood far less certain that demanded by the clear and unmistakable burden of proof asked by the Board. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (citing Harris, v. West, 11 Vet. App. 456, 462 (1998)). Furthermore, while the examiner found that arthritis "does not typically develop within 6 weeks," the examiner did not address the instant Veteran's specific case, including his contentions, the in-service sick calls, and the 2 normal x-rays noted during service in December 1968. Thus, it is not clear why or how the examiner concluded that the "typical" case applied in the Veteran's history. The April 2021 and August 2021 Board remand specifically requested that the examiner provide a clear and complete rationale when stating whether a clear and unmistakable finding of whether the condition preexisted service and whether such preexisting condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease. Further, the remands requested that the examiner address the Veteran's contentions, entrance, and separation examinations, in-service sick calls, and in-service x-ray reports. Additionally, the remand directives requested that the examiner address the 2 normal x-rays noted in December 1968 and one abnormal x-ray noted in January 1969, and the September 2019 Court's decision. The examiner did not make such findings in accordance with the April 2021 or the August 2021 remand directives. In sum, the findings that the Board directed the examiner to make were not made, hence the opinion is inadequate. Furthermore, the examiner failed to directly address the Veteran's contentions, lay reports, and the 2 normal x-rays noted in December 1968 and one abnormal x-ray noted in January 1969. This means, the legal criteria for the Board to adjudicate the issue has not been satisfied. 38C.F.R. §3.304(b); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed.Cir. 2004). Thus, remand is required to obtain an adequate opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board requests an adequate opinion be obtained in order to comply with prior Board remands, the Court's September 2019 order and make a decision on the Veteran's claim as expeditiously as possible. The claim is REMANDED for the following action: Forward the claims file, a copy of this remand, and the September 2019 Court order, to an appropriate clinician to obtain an addendum opinion on the nature and etiology of the Veteran's back disorder. In-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. After reviewing the claims file, the examiner should address the following: (a.) Whether the evidence of record clearly and unmistakably shows that a lumbar spine condition existed prior to entry into service? (b.) If the lumbar spine condition existed prior to service, was it clearly and unmistakably not aggravated by service or was any increase in disability was due to the natural progression of the disease? (Continued on the next page) (The phrase "clearly and unmistakably" should be taken to mean that your conclusion is undebatable. That is, no medical professional reviewing the same information could reasonably reach a different conclusion.) In providing the above opinions, the examiner is advised to address all relevant information, including the Veteran's contentions, entrance and separation examinations, in-service sick calls, and in-service x-ray reports as noted in documents associated with the claims file, with entries dated: (i) 10/29/2009, titled "STR Medical"; (ii) 09/19/2019, titled "CAVC Decision," which includes the Veteran's arguments specifically pointing out 2 normal x-rays noted in December 1968 and 1 abnormal x-rays noted in January 1969, and CAVC decision. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.