Citation Nr: 22017380 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-26 246 DATE: March 24, 2022 REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral knee disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office. In November 2014, the Veteran participated in an informal conference with a Decision Review Officer and, in October 2017, testified at a Board hearing before the undersigned Veterans Law Judge. A report of the former conference and transcript of the latter hearing are associated with the record. In June 2018 and October 2020, the Board remanded the case for additional development and, in February 2021, denied service connection for a low back disorder. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2022, the Court granted a Joint Motion for Remand (JMR) that vacated the February 2021 Board decision and remanded the case to the Board for further appellate consideration. The Board notes that, upon the case's return to the Board, his representative, The American Legion, was not provided with an opportunity to submit an Informal Hearing Presentation prior to the Board's review of the case. However, the Board finds no prejudice to the Veteran in proceeding with the issuance of this Remand because, following the completion of the requested development, his representative will be given an opportunity to submit additional argument prior to the case's return to the Board. Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral knee disabilities. In the February 2021 decision, the Board denied service connection for a low back disorder on the basis that spinal stenosis is a congenital defect that was no subject to a superimposed disease or injury during service that resulted in additional disability, and a low back disorder other than spinal stenosis was not shown to be causally or etiologically related to any disease, injury, or incident during service, is not caused or aggravated by a service-connected disability, and arthritis did not manifest within one year of separation from active duty. However, in the January 2022 JMR, the parties found that the Board erred by providing inadequate reasons or bases for finding that the Veteran's spinal stenosis was a congenital defect rather than a congenital disease. In this regard, the parties noted that the Board did not analyze whether such disorder was capable of improving or deteriorating, or remained essentially static or immutable, or discuss the evidence in support of such determination. Upon review of the record, the Board observes that a July 2020 VA examiner found congenital spinal stenosis to be a defect as such was present since birth; however, she also stated that the Veteran's low back pain was consistent with the natural age progression of stenosis and congenital stenosis increased the risk of spinal stenosis over age 50. Thus, in light of the JMR, the Board finds that an addendum opinion is necessary to determine the nature and etiology of the Veterans spinal stenosis. The parties further found that, while on remand, another attempt should be made to obtain outstanding private treatment records pertaining to the Veteran's low back disorder from Faxton Hospital in Utica, New York, where he was treated by Dr. Schmidt. Thus, such should be accomplished on remand. The matter is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, make at least two (2) attempts to obtain the Veteran's treatment records from Dr. Schmidt at Faxton Hospital in Utica, New York, to specifically include records from 1964. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Forward the record to an appropriate VA examiner to obtain an addendum opinion addressing the nature and etiology of the Veteran's spinal stenosis. Following a review of the record, the examiner should address the below inquiries: Is the Veteran's spinal stenosis a congenital defect or disease? The examiner is advised that a defect remains essentially static or immutable and a disease is capable of improving or deteriorating. He or she should provide the basis for such determination. (i) If it is a congenital defect, state whether such was subject to a superimposed disease or injury during service that resulted in additional disability. If so, please identify the additional disability. (ii) If it is a congenital disease, state whether such clearly and unmistakably pre-existed the Veteran's entrance to military service. (a) If so, is there clear and unmistakable evidence that such pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of the disorder in service, state whether such increase was clearly and unmistakably due to the natural progress of the disease. (b) If not, is it at least as likely as not that such disorder is directly related to the Veteran's military service, to include as a result of jarring rides in M-60 tanks and APCs and/or due to jumping from helicopters that hovered 8 to 12 feet above ground, which, on one occasion, resulted in a back sprain? A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.