Citation Nr: 19124992 Decision Date: 04/03/19 Archive Date: 04/03/19 DOCKET NO. 11-12 938 DATE: April 3, 2019 REMANDED Entitlement to service connection for low back pain is remanded. REASONS FOR REMAND The Veteran had active service from May 1983 to April 1986. This matter is on appeal to the Board of Veterans’ Appeals (Board) from June 2010 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Board denied service connection for low back pain; service connection for bilateral eye disability characterized pain and blurred vision with dizziness; and service connection for bilateral heel spurs to include arthritis. In October 2018, the Veteran appealed the portion of the Board’s decision denying service connection for low back pain to the United States Court of Appeals for Veterans Claims (Court), which, in November 2018, granted a Joint Motion for Partial Remand (JMPR). The Court’s Order vacated, in part, the Board’s October 2017 decision with regard to the issue of low back pain, and remanded the matter to the Board consistent with the terms of the joint motion. Low Back Pain As agreed by the parties, in determining whether VA was required to provide the Appellant a medical examination, the Board provided an inadequate statement of reasons or bases for why the second and third McLendon prongs were not met. See JMPR at 2; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Namely, the JMPR indicated that the Board “did not weigh Appellant’s report of recurrent back pain at separation” on February 1986 Report of Medical History, and his April 2012 hearing testimony that “he injured his back when he fell while playing basketball during service and was subsequent placed on light duty for two weeks and was seen for back pain for a few more instances afterward.” Id. at 3. Further, the parties indicated that when analyzing whether the third McLendon prong was satisfied, the Board did not take into consideration whether there was evidence of continuity of symptomatology and “erred when it required competent medical evidence to satisfy the third McLendon prong.” Id. at 4. However, the Board points out that in the October 2017 decision, the Board specifically noted that the Veteran’s “report of medical history at separation in February 1986, he reported recurrent back pain but on clinical evaluation his spine and other musculoskeletal were found normal.” See October 2017 Board decision at 8. The Board at the time further found that “the earliest documentation of low back pain was in October 2009, approximately 23 years after separation” and that “objective medical evidence demonstrates that a diagnosis of low back pain was rendered in May 2011, approximately 25 years after separation from service.” Id. at 8, 9. In December 2018, the Veteran submitted a medical opinion from his treating physician, T.J.S., M.D., opining that the Veteran’s “current chronic disability is directly linked to the condition that first developed while on active duty and continued to be aggravated by service on active duty… there has also been continuity of symptoms from service to present.” See Statement from T.S., M.D. dated December 2018. Given that the Veteran was not afforded a VA examination for his claimed condition, and because there is no medical opinion of record that reflects consideration of the conflicting private medical opinion, the Board finds that remand is necessary. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed chronic low back pain. The Veteran’s claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination. This review should include the Veteran’s service treatment records, post-service medical treatment records and the assertions of the Veteran and his representative, along with any other information the medical professional deems pertinent. A note that this information was reviewed should be included in the opinion. Following examination of the Veteran, the examiner is to provide an opinion as to whether the Veteran has a current diagnosed disability of low back pain. For such diagnosed condition, whether it is at least as likely as not (a 50 percent or greater probability) that the claimed condition had onset in service or is directly linked to the Veteran’s time on active duty. The examiner’s opinion must reflect consideration of lay and medical evidence of record, to include the December 2018 private opinion by T.J., M.D. A complete rationale for all findings and conclusions must be provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Sonja An, Associate Counsel Department of Veterans Affairs