Citation Nr: 18156022 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-33 449 DATE: December 6, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. A September 2009 rating decision denied service connection for a low back disability. The Veteran did not appeal. 2. At the time of the September 2009 rating decision, the record did not contain evidence showing a low back condition. Subsequent to that decision, the Veteran was afforded a VA examination in August 2013 diagnosing the Veteran with a low back disability. This diagnosis is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). REASONS FOR REMAND The Veteran served on active duty from March 2006 to August 2008. The claim of service connection for lumbar strain was denied in a September 2009 rating decision by the Agency of Original Jurisdiction (AOJ) for lack of a current disability. That decision noted the Veteran failed to report to his scheduled VA examination in August 2009 without good cause. The claim to reopen was subsequently denied by the AOJ in a November 2011 rating decision. In that decision, the AOJ found new and material evidence was not submitted and there was still no evidence of a current disability. The Veteran appeals the November 2011 rating decision. In a July 2013 hearing by the regional office, the reviewing officer reopened the claim based on the Veteran’s contention his back condition was due to his service connected bilateral foot condition. Therefore, the Veteran was afforded a VA examination in August 2013, which diagnosed him with a low back condition. In September 2017, the Board remanded the Veteran’s claim to the AOJ to schedule the Veteran for a Board video conference hearing. However, the Veteran failed to appear at the scheduled January 2018 hearing. In the August 2013 VA examination, the examiner opined the Veteran’s current lumbar disability was “less likely than not caused by the vets post op hallux valgus.” However, the VA examiner did not discuss aggravation or direct service connection. Subsequently, in an April 2016 examination, Dr. N.H. noted in the history of present illness the Veteran had “exacerbation of chronic low bp, 6 years. injured in service 5 years ago.” The Board finds that further development is required prior to final adjudication of the claim. As the claim is now reopened, a medical opinion is necessary to determine if the Veteran’s current low back disability is directly related to his active service or was caused or aggravated by his service-connected bilateral foot condition. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his lower back symptoms that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s low back disability. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination, if deemed necessary, the reviewing clinician should identify all low back disabilities present. Then, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s low back disability was incurred in, or is otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s low back disability was caused by his service-connected bilateral foot condition? Is it at least as likely as not that the Veteran’s low back disability was aggravated beyond the normal course of the condition by his service-connected bilateral foot condition? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zheng, Associate Counsel