Citation Nr: 18154289 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-62 286 DATE: November 29, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for a low back disability, has been received; to this extent, the appeal is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT 1. In an unappealed decision, dated in July 1995, the RO denied a claim for service connection for lumbosacral strain. 2. The evidence received since the RO's July 1995 decision, which denied a claim for service connection for lumbosacral strain, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW [New and material evidence has been received since the RO’s July 1995 decision; the claims for lumbosacral strain; the claim for service connection is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to October 1994. This matter is on appeal from a June 2016 rating decision. New and material evidence The Veteran most recently filed a request to reopen his claim for entitlement to service connection for a low back disability, claimed as back strain, in February 2016. At the time of his last final denial, evidence of record included service treatment records, private treatment records, and a VA examination. Since the last final denial, evidence added to the record includes additional private treatment records and a relevant April 2016 VA examination and medical opinion. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for a low back disability is reopened. REASONS FOR REMAND Low back disability [The Veteran contends that he has a low back disability that is related to his service. Specifically, he contends that his primary care physician and chiropractor have related his recurrent low back pain is a result of an initial injury during service. He explained that his initial injury occurred in 1988 on the flight deck during his deployment. See, December 2016 substantive appeal. The service treatment records (STRs) include a May 1988 clinical note which indicates an assessment of mild low back strain. An August 1994 report of medical history which indicates a history of chronic low back pain since 1988. Private treatment records dated in November 1994 note complained of chronic low back pain since 1987/1988. On January 1995 VA general medical and orthopedic examination the Veteran complained of intermittent back pain since1988. The examiner diagnosed chronic lower back pain, in remission. On April 2016 VA back conditions Disability Benefits Questionnaire (DBQ) examination, the examiner diagnosed lumbosacral strain and degenerative arthritis of the spine which he opined was not related to the Veteran’s service. The rationale, in part, was that the service record does not document objective findings consistent with a high energy injury to the soft tissue or osseous structures of the lumbar spine. The examiner further opined that in the absence of such findings, a post traumatic or chronic inflammatory process is less likely than not. The examiner stated that the Veteran’s radiographs do not reveal advanced degenerative changes and therefore are inconsistent with a post traumatic process that was purportedly initiated in 1994. On review of the medical opinion, the Board finds that the examiner failed to consider the Veteran’s credible lay statements regarding the onset of his low back problems, in-service symptoms, and complaints. It also appears that the examiner failed to review and discuss all the pertinent medical evidence of record to specifically include the STRs which document treatment of low back pain and private treatment records which reflect treatment of low back symptoms. Accordingly, the April 2016 VA medical opinion is inadequate for adjudication purposes and an additional VA examination and medical opinion are necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Schedule an appropriate VA examination to determine the nature and etiology of any low back disability. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. Is it at least as likely as not (a 50 percent probability or greater) that any current low back disability, had its onset in or is etiologically-related to the Veteran’s active duty service? The examiner should specifically comment on the Veteran’s lay statements concerning the onset and progression of his low back problems. The examiner is also asked to review and specifically consider the Veteran’s complaints and treatment of low back pain in the STRs, private treatment records regarding low back symptoms, the January 1995 VA examination, and the April 2016 VA medical examination report and opinion. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel