Citation Nr: 22018342 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-02 419 DATE: March 28, 2022 REMANDED Entitlement to service connection for a lumbar spine disability, claimed as a low back condition, is remanded. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2019, the Veteran and his spouse testified during a video-conference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. During the June 2019 Board hearing, the Veteran stated he was unrepresented. However, subsequent to the Board hearing, a newly executed appointment form was associated with the electronic claims file in March 2021 identifying the Texas Veterans Commission as the Veteran's representative. In October 2019, the Board remanded the claims of service connection for a lumbar spine disability and cervical spine DDD for further development, to include obtaining outstanding service department records, if any, and to provide the Veteran with a new VA lumbar spine examination and obtain addendum VA medical opinions addressing the likely etiology of his cervical spine and lumbar spine disorders. On remand, service department records were obtained and associated with the claims file. In January 2020, the Veteran underwent a VA back examination and VA provided opinions addressing the likely etiology of the Veteran's neck and back disorders, and the examination report and opinions are of record and have been reviewed. However, for reasons set forth below, the Board finds there has not been substantial compliance with its October 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). VA Opinions The Board finds deficiencies in the January 2020 VA medical opinions addressing the etiology of the Veteran's cervical spine and lumbar spine disorders. The January 2020 VA examiner indicated that there is evidence of repetitive lifting during service, and he acknowledged the Veteran's statements to this effect, but dismissed these statements and opined negatively regarding nexus. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Regarding the Veteran's cervical spine disorder, the examiner emphasized that the service treatment records are silent for treatment or diagnosis of a neck condition. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (The absence of evidence in the Veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection). Regarding the lumbar spine disorder, the examiner noted a May 1991 report of back pain during service and the absence of evidence of continuing treatment but dismissed the Veteran's lay statements asserting ongoing back pain since service. See Dalton, supra. Additionally, the January 2020 VA examiner has identified January 2010 MRI findings of congenital lumbar stenosis among the Veteran's back diagnoses. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Here, the January 2010 MRI findings reflects a degenerative change superimposed on mild congenital stenosis. Accordingly, a remand for addendum medical opinions addressing the likely etiology of the Veteran's cervical and lumbar spine disabilities, to include the likelihood that there was a superimposed disease or injury during service that resulted in additional disability, is necessary to ensure that the Board's evaluation of the Veteran's claims is a fully informed one. See Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, obtain an addendum VA medical opinion addressing the etiology of the Veteran's cervical spine disorder from an appropriately qualified VA examiner who is a physician (M.D.). The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed cervical spine disorders that have been present at any point during the appeal period, which commenced on February 6, 2013. (b) Provide an opinion as to whether it is at least as likely as not that each currently diagnosed cervical spine disorder had its onset in or is otherwise related to the Veteran's service, including his duties of repetitive lifting as an Air Cargo Handler, and further evidence referenced below. In answering these questions, the VA examiner should address the following evidence: *Service treatment record dated May 2, 1991, reflecting that the Veteran complained of low back pain, with an assessment of muscle strain. *Treatment records provided by private physician J.T.G., MD dated April 4, 2016, noting that the Veteran reported repetitive heavy lifting of supplies during service that cause his lumbar and cervical spine pain. *Treatment records provided by private physician J.T.G., MD dated April 26, 2019, noting that the Veteran "suffers from lumbar and cervical spine pain due to an injury 1988-1991 while doing heavy lifting in the military." *The Veteran's lay statements, including: VBMS "NOD," receipt date 12/23/2013; VBMS "Form 9" and "Correspondence," receipt date 01/18/2016; VBMS "Form 9," receipt date 01/11/2018; and VBMS "Hearing Transcript," receipt date 06/25/2019 (Veteran's testimony). The examiner must provide a complete rationale for each opinion provided. 3. Obtain an addendum VA medical opinion addressing the etiology of the Veteran's low back/lumbar spine disorders from an appropriately qualified VA examiner who is a physician (M.D.). The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify the currently diagnosed low back/lumbar spine disorders that have been present at any point during the appeal period, which commenced on February 6, 2013. (b) For each back/lumbar spine disorders, the VA examiner should state whether they are acquired or congenital. If a congenital disorder exists, the examiner should state whether it is a disease or defect (Note: A disease is capable of improvement or deterioration while a defect is static.) (c) If a congenital disease is present, the examiner should render a medical opinion as to whether the congenital disease permanent worsened beyond normal progress during the Veteran's military service, to include due to his duties of repetitive lifting as an Air Cargo Handler, and further evidence referenced below. (d) If there was permanent worsening of a congenital disease during service, was the worsening consistent with the natural progress of the disease, or was the worsening beyond the natural progress of the disease? (e) If a congenital defect is present, the examiner should render a medical opinion as to whether it is at least as likely as not that there was a superimposed disease or injury during military service that resulted in additional disability. (f) If an acquired (non-congenital) disorder exists, the VA examiner should state whether there is clear and unmistakable (obvious and manifest) evidence that each back/lumbar spine disorder existed prior to the period of active duty service in September 1988. (g) If it is the opinion that the Veteran's acquired back/lumbar spine disorder did pre-exist service, were the back/lumbar spine disorder clearly and unmistakably NOT aggravated (permanent worsening beyond normal progress) by any of the Veteran's periods of active duty, to include due to his duties of repetitive lifting as an Air Cargo Handler, and further evidence referenced below? (h) If the answer to (g) above is negative, the Veteran is presumed sound at service entrance. Therefore, provide an opinion as to whether each low back/lumbar spine disorder at least as likely as not had its onset in or is otherwise related to the Veteran's service, including his duties of repetitive lifting as an Air Cargo Handler, and further evidence referenced below. In answering these questions, the VA examiner should address the following evidence: *Service treatment record dated May 2, 1991 reflecting that the Veteran complained of low back pain, with an assessment of muscle strain. *Treatment records provided by private physician J.T.G., MD dated April 4, 2016, noting that the Veteran reported repetitive heavy lifting of supplies during service that cause his lumbar and cervical spine pain. *Treatment records provided by private physician J.T.G., MD dated April 26, 2019, noting that the Veteran "suffers from lumbar and cervical spine pain due to an injury 1988-1991 while doing heavy lifting in the military." *The Veteran's lay statements, including: VBMS "NOD," receipt date 12/23/2013; VBMS "Form 9" and "Correspondence," receipt date 01/18/2016; VBMS "Form 9," receipt date 01/11/2018; and VBMS "Hearing Transcript," receipt date 06/25/2019 (Veteran's testimony). *Non-VA spine MRI report dated January 13, 2010, by K.C., M.D. reflecting an impression of degenerative change superimposed on mild congenital stenosis. See VBMS "Medical Treatment Record -Non-Government Facility," receipt date 03/14/2013 (page 6 of 8). The examiner must provide a complete rationale for each opinion provided. (Continued on the next page) 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 5. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.