Citation Nr: 18147586 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 13-28 330A DATE: November 6, 2018 REMANDED Entitlement to service connection for a disability of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran had active service from June 1982 to May 1986. The Board previously remanded this issue in June 2015. The Board also remanded the issues of entitlement to service connection for constipation, a circulation disability, and a psychiatric disability; and entitlement to increased disability ratings for a linear scar, maxillary sinusitis, contact dermatitis/dyshidrosis, a coccyx contusion, and a pilonidal cyst scar for issuance of a statement of the case pursuant to the holding in Manlincon v. West, 12 Vet. App. 238 (1999). The Regional Office granted the Veteran entitlement to posttraumatic stress disorder to include major depressive disorder in an October 2018 rating decision. Therefore, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Regional Office also issued a statement of the case in October 2018 addressing the other issues remanded by the Board. The Veteran has not submitted a substantive appeal as to those issues, and the Regional Office has not certified those issues to the Board. Therefore, those issues are not on appeal before the Board at this time. Entitlement to service connection for a disability of the lumbosacral spine is remanded. In its June 2015 remand, the Board concluded that VA opinions obtained in May 2008 and February 2012 were inadequate for decision-making purposes because the examiners essentially ignored the competent lay evidence of record indicating that the Veteran has had low back pain continuously since an in-service falling injury. The Board therefore directed the Regional Office to afford the Veteran another VA examination and opinion. The Board specified that “the examiner must discuss and consider the Veteran’s competent lay statements, as well as the competent lay statements provided by others, and assume such statements are credible for purposes of the opinions. Specifically, in forming an opinion, the examiner should include consideration of the Veteran’s statements concerning her in-service injury, as well as her continuous low back manifestations since that time.” On remand, the Veteran was afforded VA examinations in September 2015 and March 2018. Both of those VA examiners opined that the Veteran’s current disability of the lumbosacral spine is less likely as not related to her active service. As a rationale for his opinion, the September 2015 VA examiner explained that the Veteran’s service treatment records show that she fell onto her tailbone in July 1983, had pain with ambulation later that same month, was treated several times for a pilonidal cyst, and complained of low back pain in August 1984, but was negative for back problems on a separation medical history form and separation medical examination form dated in 1986. He concluded, “Unable to locate any [complaint of] or [treatment] for the back from 1984 to [discharge in] 1986.” As a rationale for her opinion, the March 2018 VA examiner stated that “[t]here is a period of about 10 years that records were not found” between the August 1984 in-service report of low back pain and a February 1995 record showing complaints of headaches since a motor vehicle accident two days prior. The examiner further stated, “Per lengthy review of records, there is no documentation of ongoing problems with her coccyx after discharge. It appears that resolved. She has seen a variety of physicians at different clinics, she has also had several back injuries and surgeries, as listed above, that could result in back discomfort.” The examiner then provided an excerpt from medlineplus.gov discussing tailbone injuries. The Board finds that the September 2015 and March 2018 VA opinions are inadequate for decision-making purposes because they, like the May 2008 and February 2012 VA opinions, essentially ignore the competent lay evidence of record indicating that the Veteran has had low back pain continuously since the in-service falling injury. They instead focus on the lack of contemporaneous medical treatment records documenting complaints of or treatment for low back pain. Therefore, the Board finds that the issue must again be remanded so that an adequate opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed disabilities of the lumbosacral spine are at least as likely as not related to her active service, to include the in-service fall and pilonidal cyst, which are documented in the service treatment records. To be considered adequate for decision-making purposes, any negative opinion must reflect consideration of the credible assertions from the Veteran and other lay witnesses that the Veteran has experienced low back pain since the in-service falling injury, and must be supported by rationale that explains why, even in view of those credible assertions, it is less likely than not that the Veteran’s current disabilities of the lumbosacral spine are related to her active service. A negative opinion may be based partly on a lack of contemporaneous medical treatment records documenting complaints of or treatment for low back pain, but must not be based solely on such a finding. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel