Citation Nr: 20002998 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-43 043 DATE: January 14, 2020 REMANDED The issue of entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2006 to October 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The issue of entitlement to service connection for a low back disability is remanded. The Veteran contends that he has a current low back disability that was caused or aggravated by his active duty service, to include as a result of heavy lifting of ordinances and bombs throughout his tour. While the Board recognizes that the record contains an arguably positive VA opinion, it finds that further remand is necessary for a new opinion, as the positive opinion is not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion is inadequate if the opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, or does not consider all the relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Here, the Board finds that the January 2016 VA examination is inadequate because it appears that the examiner did not consider all the relevant evidence of record and provided insufficient rationale for the conclusion that a low back disability clearly and unmistakably preexisted service and was aggravated therein. In this regard, it is unclear whether the examiner considered the Veteran’s report of complete resolution of low back symptoms prior to service or the Veteran’s post-service work-related back injuries while working for a fire department. Specifically, the record shows that prior to service, in April 2004, the Veteran was treated for back pain and radiating leg pain and was found on MRI to have degenerative disc disease at L3-4, L4-5, and L5-S1, and herniated disks at L4-5 and L5-S1. Despite that injury, the record shows that the Veteran’s back symptoms resolved following epidural steroid injections and that no back disability was reported or found during a May 2006 enlistment examination. Thus, while there certainly was a history of a pre-service back injury, it is unclear whether there was clearly and unmistakably an actual disability prior to the Veteran’s service. Then, during service, the Veteran sought treatment in November 2007 for back pain and pain shooting down to the buttocks, which started with twisting when he tried to “crack” his back. Parenthetically, the Veteran’s report of how the back injury occurred that was contemporaneously recorded in the November 2007 STR is somewhat inconsistent with his subsequent October 2015 statement that he felt a slight twinge in his back while assisting movement of a 500-pound bomb and then woke up the next day in November 2007 in excruciating pain. Nevertheless, he was assessed in service to have an acute myofascial lumbar strain, acute low back pain, and lumbago (twisting injury of lumbar spine). The STRs thereafter are silent for back complaints other than noting a general history of a backache and, while the Veteran reported a history of a back strain on his July 2010 separation examination, he denied a history of recurrent back pain and did not offer any current back complaints, despite positively reporting current knee pain. He was not found to have any back abnormality during his separation examination. Post service, the record shows that, in November 2010 and December 2010, the Veteran sought VA treatment for back injuries related to pulling a fire hose and lifting a 35-foot ladder while working for the fire department. In November 2010, the Veteran reported a history of a pre-service back injury in 2004 with complete resolution of his back and leg pain prior to joining the military in 2006. Also in November 2010, he denied having back problems during his service. Indeed, he affirmatively reported that he completed basic training at Parris Island, as well as “4 years in the Corps without any significant back pain.” He stated that during his tour he was required to do heavy lifting, pushing, pulling, bending activities, including loading and unloading bombs, but that “[h]e never had back problems. He was essentially free of any back or leg symptoms until the most recent injury, which occurred while pulling hoses at the Fire Academy.” In November 2010 and May 2011, he placed the onset of his current back pain with the fire-department injures in 2010. The 2016 VA examiner’s opinion did not address the evidence of intercurrent post-service back injuries discussed above, or the denial of a history of ongoing back problems at the time of those post-service injuries; thus, the Board finds it inadequate. Indeed, while the Veteran has testified as to pain since the back injury in service, it appears from the Board’s review that the Veteran (1) had a significant pre-service back injury, which resolved prior to service; (2) an in-service back injury, which resolved in service; and (3) post-service occupational back injuries of which symptoms have persisted. Nevertheless, regardless of whether or not the record credibly supports a continuity of back pain since the in-service injury, the record certainly supports that the Veteran’s duties in service could have caused or contributed to his current back disability, or even his post-service injuries. As such, the Board must remand to obtain an opinion that considers all of the relevant evidence. Given the inadequacies in the January 2016 examination, as well as the addition of lay statements submitted by the Veteran regarding his back condition from individuals with whom he served, the Board concludes that an additional VA examination should be provided. In providing the new examination on remand, the examiner should review the Veteran’s entire claims file and directly address the evidence of back injuries prior to service in April 2004, during service in November 2007, and after service in November 2010 and December 2010. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address his low back disability. Following examination of the Veteran and a review of the claims file, the examiner should respond to the following: (a) Did the Veteran’s low back disability clearly and unmistakably (i.e., obviously, manifestly, or undebatably) preexist the Veteran’s period of active service? Please explain why or why not, addressing the medical and lay evidence indicating that the Veteran had a back injury in April 2004, shown on MRI to be degenerative disc disease and herniated disks, with complete resolution of symptoms from prior to entering service, and the normal May 2006 entrance examination. (b) If you determine that a low back disability clearly and unmistakably preexisted service, does the evidence clearly and unmistakably (i.e., obviously, manifestly, or undebatably) show that the preexisting condition did not undergo an increase in the underlying pathology, i.e., an aggravation, during service, or that any increase in disability was due to the natural progression of the disease? Please explain why or why not, considering the evidence of a twisting injury to the back in November 2007. (c) If a low back disability clearly and unmistakably preexisted service and increased in severity during service, not as a result of the natural progression of the disease, is it as likely as not that any current low back disability is related to the in-service aggravation? Please explain why or why not, considering the Veteran’s duties in service involving heavy lifting, pushing, pulling, and bending activities, including loading and unloading bombs, as well as the November 2010 post-service back injuries and findings of DDD, herniated disks, a Schmorl’s node, and an annulus tear on MRI. (d) For any low back disability that did not clearly and unmistakably preexist service, is it at least as likely as not (50 percent probability or more) that the disability had its onset in service, is related to the Veteran’s November 2007 back injury therein, or is otherwise related to service, to include duties involving heavy lifting? Please explain why or why not. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.