Citation Nr: A19001576 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190819-22120 DATE: September 26, 2019 REMANDED Service connection for mechanical low back pain with lumbar myofascial trigger point is remanded. REASONS FOR REMAND In August 1966, while on active duty for training with the New York Army National Guard, the Veteran injured his back while loading a truck. In September 1966 his battalion commander requested an examination for the Veteran’s back at a Department of Veterans Affairs (VA) hospital. The examiner noted back pain but no evidence of pathology or disc disease. The next medical record of any kind in the claims file is of an October 2010 visit to a chiropractor. In March 2017, the Veteran sought service connection for a lower back disability. That claim was denied by a VA regional office (RO) in November 2017. The RO stated that if VA obtained the service treatment records, it would reconsider the claim as though the records were in VA’s possession at the time of the decision denying the claim. 38 C.F.R. § 3.156. In August 2018, the Veteran obtained records from the New York State National Guard showing the August 1966 accident. The Veteran requested reconsideration. He submitted lay statements from himself and his wife asserting that his lower back problems had persisted from the time of his injury and were sometimes incapacitating. He noted that historically he had obtained his health care through private providers and submitted a list of those providers from the 1970s through the present, along with medical releases, to enable VA to obtain his medical records. Through research, the RO was able to find the listed providers and contact some of them but was unable to obtain records prior to October 2010. Some providers were deceased. Others had no records pertaining to the Veteran but noted that their retention policies would have resulted in the destruction of the Veteran's records. The RO obtained records from chiropractic providers dating from October 2010 forward. On VA examination in December 2018, the examiner diagnosed mechanical low back pain and a myofascial trigger point but opined that the back disability was not service-related. He noted evidence that the original injury had occurred in August 1966, and that there was a September 1966 medical evaluation of improving symptoms. He explained that most low back pain is acute, lasts up to a few weeks and tends to resolve on its own. He observed that there was no further medical record of a back problem until a chiropractor’s visit in 2010, and thus “no continuity of symptoms in the medical records that documents that this acute episode of low back pain became chronic.” Relying on the VA examiner’s opinion, in January 2019 the RO denied the claim. In July 2019 the Veteran attempted to obtain readjudication of the RO’s decision under the process outlined in the Appeals Management Act (AMA), 84 Fed. Reg. 138 et seq. (Jan. 18, 2019), by filing a supplemental claim and presenting new and relevant evidence. Id. at 172 (to be codified at 38 C.F.R. §§ 3.2501(a)(1), 19.2.) Along with the VA form requesting review as a supplemental claim, the Veteran submitted a medical opinion from Dr. C, the Veteran's long-time treating chiropractor, who opined that the Veteran's current back condition was connected to his in-service accident. In August 2019 the RO issued a rating decision again denying the Veteran's claim, and the Veteran appealed to the Board of Veterans' Appeals (Board). Of the three dockets available for consideration of the appeal under the AMA process, the Veteran selected the “Direct” docket. In his Notice of Disagreement, the Veteran noted the presence of a positive medical opinion, and that he was entitled to the benefit of the doubt. The Board notes, however, that under the Direct appeal docket it is limited to reviewing the evidence that was before the RO when it made the January 2019 decision to deny the Veteran's claim, and thus for the purposes of the decision reached here may not consider Dr. C’s positive medical opinion, because it was submitted after the January 2019 denial. The Board will remand to correct a duty to assist error that occurred prior to the January 2019 rating decision on appeal. The December 2018 medical opinion does not provide an adequate rationale regarding whether the Veteran’s low back disability had its onset in service or is otherwise related to service. The Board notes that the VA examiner relied heavily on the lack of medical records between September 1966 and October 2010 to support his opinion that the Veteran’s current back disability did not stem from his in-service injury. The examiner opined that the absence of those records was negative evidence, in that it showed that there was no continuity of symptoms from 1966 to 2010. The Board notes, however, that the absence of evidence is not negative evidence in and of itself. Rather, there must be a proper foundation from which to draw such an inference. Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (in general, it is not sufficient merely to cite the absence of evidence without explaining why it weighs against the claim). The only background for the negative inference discussed by the examiner was that in general, most lower back problems are mechanical and resolve after a few weeks without residual effect. The examiner cited no support for this medical theory, nor did he explain why the Veteran’s back problems might not be among those cases that do not so resolve. Further, the examiner did not discuss the Veteran’s, and his spouse’s, lay statements, both of which asserted that his back symptoms were long-term, from the time of his in-service injury. These lay statements constitute competent evidence. While the Veteran and his spouse are not competent to diagnose his disability, they are competent to provide lay evidence of his symptomatology, to the extent his symptoms are directly observable by them and do not require specialized medical or other training to describe. 38 C.F.R. § 3.159(a)(2). The matter is REMANDED for the following action: 1. Obtain any relevant outstanding VA or private medical records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed low back disability. The claims file must be made available for review by the examiner. A detailed clinical history from the Veteran should be obtained and all pertinent pathology found reported. Any testing deemed necessary must be performed. For each disability diagnosed, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the diagnosed disability began during service or is etiologically related to service. The rationale for every opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David S. Katz, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.