Citation Nr: 22018373 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 14-29 873 DATE: March 29, 2022 REMANDED Entitlement to service connection for cervical spine degenerative disc disease is remanded. Entitlement to service connection for thoracolumbar spine degenerative disc disease is remanded. Entitlement to service connection for bilateral sciatica, to include as secondary to thoracolumbar spine degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran had active military service in the Army from August 1984 to August 1986. He was also a member of the United States Army Reserve (USAR) until his retirement in April 2005, to include periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) between 1986 to 2005. These matters come before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 2012. In June 2014, the Veteran had an informal conference with a Decision Review Officer (DRO) in lieu of a formal hearing at the agency of original jurisdiction (AOJ). In April 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge at the AOJ. A copy of the hearing transcript has been associated with the electronic claims file. In March 2018, the Board remanded these matters for additional development. The Board issued a remand in June 2021 instructing the RO to compile a list of active and inactive periods of service, VA treatment records from December 2020 to the present, and obtain a VA medical opinion that "acknowledge and discuss" the findings of the previous VA examinations and discuss medically known or theoretical causes of any current cervical spine and/or thoracolumbar spine disorder. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained a list of the Veteran's active and inactive periods of service and VA treatment records from December 2020 to August 2021. The RO also obtained a December 2021 VA examination and medical opinion. The medical opinion stated the following: "A) CERVICAL SPINE DEGENERATIVE DISC DISEASE- Tabbed records reviewed. The veteran's statement is considered and the strenuous nature of his work while in the military acknowledged. Nevertheless, the lack of evidence of back complaints until 2003 argues against the duties in the kitchen 1984-86 rise to the at least as likely as not standard as being incurred in or the cause of his current neck condition. The claimed cervical arthritis and DDD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury in service. B) BILATERAL SCIATICA - Veteran is not diagnosed with bilateral sciatica. C) THORACOLUMBAR SPINE DEGENERATIVE DISC DISEASE- Tabbed records reviewed. The veteran's statement is considered and the strenuous nature of his work while in the military acknowledged. Nevertheless, the lack of evidence of back complaints until 2003 argues against the duties in the kitchen 1984-86 rise to the at least as likely as not standard as being incurred in or the cause of his current back condition. The claimed back arthritis, DDD, and back surgery were less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury in service." The Board finds this medical opinion to be inadequate. The exam is inadequate if it does not consider all the relevant evidence of record including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The medical examiner did not account for the Veteran's lay statements in his opinion concerning the etiology of his disabilities. See e.g., August 2005 Statement (wore helmet for extended period of time). The Board also finds the medical opinion to be inadequate because the examiner did not address the findings of the previous VA examinations as instructed by the June 2021 Board Remand. The examiner was also asked to medically known or theoretical causes of any current cervical spine and/or thoracolumbar spine disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause. The examiner did not provide this information. Therefore, remand is required to address the Veteran's lay statements and comply with the remand directives. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion for an examiner other the one used for the previous examination. A complete copy of the claims file, including a copy of this remand, must be provided to the examiner for review. The examiner is asked to review the claims file in its entirety and indicate in the record that he or she has done so. Based on a review of the evidence of record and with consideration of the Veteran's lay statements concerning his asserted in-service weightbearing (including helmet), physical duties, and falls, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed cervical spine and thoracolumbar spine disorders onset during or were causally related to active military service, to include the Veteran's verified period of active duty from August 1984 to August 1986, as well as any other verified period of active duty, ACDUTRA, and INACDUTRA during his USAR service from1986 to 2005. The examiner must acknowledge and discuss the findings in the February 2006, July 2013, June2014, and November 2019 VA examination reports/medical opinions. The examiner must acknowledge the Veteran's lay statements about the etiology of his disabilities. The Veteran is competent to attest to factual matters of which he had first-hand knowledge, such as falling in service, performing rigorous physical duties, and experiencing pain in the neck and back. The examiner is reminded that the absence of in-service documentation of the claimed cervical spine and/or thoracolumbar spine disorder is not considered adequate rationale concerning etiology of the claimed cervical spine and/or thoracolumbar spine disorder. (Continued on the next page) A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. 2. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.