Citation Nr: 20003397 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-13 709 DATE: January 14, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for left lower extremity sciatica as secondary to a low back disorder is remanded. Entitlement to service connection for right lower extremity sciatica as secondary to a low back disorder is remanded. REASONS FOR REMAND The Veteran served in the Navy from September 1951 to August 1955 and from November 1955 to April 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in December 2018 for further development. Such development included obtaining a VA examination to determine whether the Veteran has a current low back disability related to service and whether the Veteran currently has bilateral lower extremity sciatica which may be proximately due to, or aggravated by, the Veteran’s low back disorder. Such development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a low back disorder is remanded. The Veteran seeks service connection for a low back disability. The record reflects that the Veteran injured his back in January 1955. The Board finds another VA examination is necessary to determine whether the Veteran’s current low back disability is related to this 1955 incident or is otherwise related to the Veteran’s service. VA’s duty to assist includes “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 C.F.R. § 5103A(d)(1). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Significantly, medical examiners may not rely primarily on the absence of service treatment records corroborating an injury to conclude there is no relationship between a veteran’s current disability and their military service. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). The Veteran was provided a VA examination on his lower back in July 2019. Following x-ray and examination, the examiner diagnosed the Veteran with severe lumbar spine spondylosis with an old compression fracture deformity. The examiner determined that the Veteran’s current low back disability was not related to his military service. In reaching this conclusion, the examiner relied entirely on the absence of service treatment records related to the back. However, the examiner noted the Veteran’s service treatment records showing a fall therein but found there was no diagnosis or treatment of a chronic back disability. The Board finds this opinion is inadequate. Clearly, the examiner based the opinion on the absence of corroborating evidence of a diagnosis during service and the absence of treatment in service, and failed to consider the Veteran’s description of his symptomatology. See Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although “the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.”). Accordingly, the Veteran must be provided a new VA examination to determine whether his current low back disability is related to his military service. Barr, 21 Vet. App. at 311-12. 2. Entitlement to service connection for left lower extremity sciatica as secondary to a low back disorder is remanded. 3. Entitlement to service connection for right lower extremity sciatica as secondary to a low back disorder is remanded. The Board is once again compelled to remand the Veteran’s claim for service connection for bilateral lower extremity sciatica. These service connection claims are inextricably intertwined with the Veteran’s claim for service connection for a low back disability, as the Veteran asserts his bilateral lower extremity sciatica is and has been proven to be at least as likely as not caused by his low back disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran was provided a VA examination on his lower extremity sciatica in July 2019. Upon examination, the examiner diagnosed the Veteran with bilateral lower extremity radiculopathy, IVDS femoral and sciatic nerves. The examiner also determined that the Veteran’s bilateral lower extremity sciatica is at least as likely as not due to the Veteran’s low back disability. However, the examiner was unable to find service connection for the Veteran’s bilateral lower extremity sciatica on the claimed secondary basis because the examiner did not find a nexus between the Veteran’s low back disability and service. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine whether the Veteran’s current low back disability is causally or otherwise etiologically related to his military service. Any and all studies, tests, and evaluations deemed necessary should be performed and reported in detail. Elicit a complete history from the Veteran. The examiner is asked to provide an opinion on the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability is causally or otherwise etiologically related to the Veteran’s military service. In rendering this opinion, the examiner must address the clinical significance of (1) the July 2019 examiner’s finding of an old compression fracture deformity and (2) the Veteran’s 30 years of post-service employment in the construction industry. In addressing the Veteran’s post-service employment, the examiner is asked to obtain a full history from the Veteran as to his duties during this 30-year period. A complete rationale must be provided for any opinion rendered and the Veteran’s lay statements must be considered. (Continued on the next page)   2. Then, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante 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.