Citation Nr: 18158590 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-04 664A DATE: December 17, 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 July 2008 rating decision denied service connection for a low back disability. The Veteran did not appeal. 2. At the time of the July 2008 rating decision, the record did not contain evidence showing that the Veteran’s low back disability was related to his time in active service. Subsequent to that decision, the Veteran submitted additional lay statements and was afforded a VA examination in January 2014 which provided a medical nexus opinion. This evidence 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 previously-denied 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 September 1991 to July 1995. The Veteran appeals a January 2014 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran contends the VA examination for his low back disability was inadequate and that there were several notations of back pain in his service treatment records (STR). See January 2017 Form 9; See also, e.g., August 1993 STR and May 1995 STR. Additionally, the Veteran stated he was a former medic and that he had to “jump from a helicopter with heavy medical supplies and a pack.” See November 2012 Congressional Letter. A January 2014 VA examination returned a negative nexus opinion. The VA clinician found “no abnormal findings on imaging prior to separation” and that the “STRs do not show signs that can be connected to his current complaints (via imaging).” The January 2014 VA clinician relied primarily on the absence of contemporaneous medical imaging records to render a negative nexus opinion and did not comment on the Veteran’s competent statements of continuity of symptoms or in-service treatment apart from imaging; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). A review of the Veteran’s STRs reveals that the Veteran sought ongoing treatment for his low back pain throughout his entire enlistment, dating to November 1991. Specific incidents of falling off a bicycle in August 1993 and lifting heavy logs in May 1995 were noted in the Veteran’s STRs. Additionally, a July 1994 impression of chronic low back pain dating back to an original injury in 1991 was noted in the STRs. Within five years post service, the Veteran sought treatment for and was diagnosed with low back pain. See June 2000 Nurse L.K. examination. He then continuously sought treatment for his back from 2004 on. See, e.g., April 2004 Dr. J.R. examination, May 2006 Dr. A.H. examination, and June 2008 VA examination. The January 2014 VA clinician’s reasoning does not adequately address the Veteran’s competent and credible assertions of symptoms during service and thereafter. In this regard, the examiner’s opinion is not adequate for the purpose of deciding the Veteran’s claim, and an additional opinion must be sought. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his low 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 at any time during the appeal period. 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? 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 clinician is to discuss the Veteran’s August 1993 complaints of low back pain after falling off a bicycle, the July 1994 impression of chronic low back pain, and the May 1995 back injury from lifting heavy logs. The clinician should also consider that the Veteran reported recurrent back pain on service separation. 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