Citation Nr: 20000935 Decision Date: 01/06/20 Archive Date: 01/06/20 DOCKET NO. 13-35 157 DATE: January 6, 2020 REMANDED Entitlement to service connection for a low back disability, to include degenerative arthritis of the spine and lumbar spondylosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970. A November 2013 VA Form 9, Substantive Appeal to the Board, indicates the Veteran wanted a videoconference hearing before the Board. However, in May 2015 correspondence, he withdrew that hearing request. 38 C.F.R. § 20.704(e) (2017). Entitlement to service connection for a low back disability is remanded. When this matter was initially before the Board in January 2018, the Board denied this claim for service connection for a low back disability, to include for degenerative arthritis of the spine and lumbar spondylosis. The Veteran appealed the Board’s decision to the U. S. Court of Appeals for Veteran’s Claims (CAVC). In a June 2019 Memorandum Decision, the CAVC vacated the Board’s January 2018 decision denying this claim, finding the Board had relied on an inadequate VA medical opinion. Specifically, the CAVC stated the Board had relied improperly on the August 2016 opinion of a VA physician who did not provide an adequate rationale to support his conclusion that there was no connection between the Veteran’s low back disability and his military service. As such, this failing must be corrected before readjudicating this claim. Accordingly, the matter is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, to include private treatment records, following proper VA procedures (38 C.F.R. § 3.159(c)). Appropriately notify him if unable to obtain identified records, as required by 38 C.F.R. § 3.159(e). 2. After receiving all additional records, obtain a supplemental medical opinion from a qualified clinician concerning the nature and etiology of the Veteran’s low back disability, including degenerative arthritis of the spine and lumbar spondylosis. A copy of this remand and all relevant medical records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions. The appropriate Disability Benefits Questionnaire (DBQ) must be used. Based on review of the claims file and the Veteran’s statements regarding the development and treatment of his disability, the examiner is asked to answer the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disability began during his service, within a year of his discharge, or is otherwise related or attributable to a disease, event, or injury in service?   In making this determination, the examiner should consider: i) May 2011 Dr. N.A.O. Medical Opinion; ii) the report of the July/August 2016 VA Examination; and iii) June 2017 VA Addendum Opinion. It is essential the examiner provide adequate rationale for the opinion and address the deficiencies in the prior VA opinion cited in the CAVC’s June 2019 memorandum decision. The mere absence of evidence of treatment for a low back disability in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient rationale for disassociating his current low back disability from his service, although it is permissible to consider this as one, just not the only, factor in making this determination of causation. The Veteran is competent to report his symptoms and history, and his reports must be specifically acknowledged and considered in formulating the opinion regarding the origins of his low back disability. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided.   If the examiner is unable to provide the requested opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.