Citation Nr: 20065327 Decision Date: 10/07/20 Archive Date: 10/07/20 DOCKET NO. 17-46 576 DATE: October 7, 2020 REMANDED Entitlement to service connection for a lower back disability, to include degenerative disc disease with lower back pain, is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from January 1967 to December 1969, and received the Combat Infantryman Badge among other distinguished decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely submitted his substantive appeal (VA Form 9) to this Board in September 2017. The Board notes that, while the Veteran initially requested a hearing via live video teleconference, his attorney representative subsequently withdrew the hearing request in January 2020 and requested 90 days to submit additional evidence, with said request being granted by the Board in April 2020. Finally, this matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to service connection for a lower back disability, to include degenerative disc disease with lower back pain, is remanded. The Veteran seeks entitlement to service connection for a lower back condition. A January 2019 MRI revealed multi-level degenerative changes of the lumbar spine, worst at L3-L4, causing mild to moderate central canal and mild to moderate bilateral foraminal stenosis, and L4-L5 causing moderate bilateral neural foraminal stenosis. According to the Veteran’s attorney representative, the Veteran contends “he injured his back while carrying heavy ammunition” while serving in combat. In November 2016, the Veteran underwent a VA examination related to his claim. According to the VA examiner, the Veteran’s thoracolumbar spine diagnoses include intervertebral disc syndrome and degenerative disc disease of the lumbar spine. The Veteran stated that “he was having back pain for years,” according to the VA examiner. Additionally, the VA examiner reported that the Veteran “had not claimed back condition during the service,” and “had no treatment within a year of leaving service.” The VA examiner opined that the Veteran’s degenerative disc disease was “less likely as not incurred in or caused by combat service in military.” By way of rationale, the VA examiner indicated that the claims file is “silent for any trauma, injury or treatment of lumbar spine in service, within one [year] leaving service and at current time.” Finally, the VA examiner indicated the medical history at separation in October 1969 noted “good health.” Thereafter, the RO issued the December 2016 Rating Decision denying the Veteran’s claim of entitlement to service connection for a lower back condition, finding his service treatment records (STRs) “do not contain complaints, treatment, or diagnosis for this condition,” and that “[t]he VA medical opinion found no link between your diagnosed medical condition and military service.” After submitting his Notice of Disagreement (NOD), the RO issued an August 2017 Statement of the Case (SOC) continuing the denial of the Veteran’s claim, and citing private treatment note from Dr. J.J. dated April 2009 that indicates he “began complaining of low back pain, in April of 2009.” According to the SOC, the Veteran “did not report any history of injury” to Dr. J.J. Finally, the SOC found “no evidence that arthritis manifested to a compensable degree, within one year of discharge from military service, to warrant the presumption of service connection.” For the following reasons, the Board finds the November 2016 VA examiner’s report is inadequate for purposes of determining whether entitlement to service connection for a lower back disability is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007). First, the Board finds the VA examiner’s negative etiological opinion is solely based upon the lack of evidence of complaints or treatment for symptoms in the Veteran’s STRs. In Dalton v. Nicholson, the Court held that an examination is inadequate where the examiner fails to comment on the Veteran’s report of in-service injury and, instead, relies entirely on the absence of evidence in the STRs to provide a negative nexus opinion. 21 Vet. App. 23 (2007); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, as the VA examiner did not provide an opinion as to the actual etiology of the Veteran’s lower back condition, instead noting that the Veteran was not treated for a lower back condition during active duty service, her opinion fails to adequately address whether the condition was otherwise related to a disease or injury incurred during active duty service. Additionally, the VA examiner’s notation that the Veteran “[s]tates he was having back pain for years” lacks sufficient specificity for purposes of determining any continuity of symptomology since military service. Finally, in January 2019 the Veteran’s treating physician, Dr. P.B., noted that the Veteran’s lumbar spine degenerative disc disease is “[p]artially service related, or wholly service related (military) probably with heavy lifting (mortar patrol infantry).” While the Veteran has waived initial RO consideration of “any documents submitted after the last adjudication,” because this matter is being remanded for additional development, Dr. P.B.’s opinion should be evaluated by the RO along with the other pertinent evidence of record. Therefore, the Board finds that a remand for a new VA examination and medical opinion as to the etiology of the Veteran’s currently demonstrated lower back disability is necessary. 38 C.F.R. § 4.2. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a physician (preferably an orthopedist or neurologist), other than Ms. F.P., possessing the necessary expertise to fully assess and provide an opinion (in the appropriate DBQ form) regarding the nature, severity, and etiology of the Veteran’s thoracolumbar spine condition throughout the period on appeal. All pertinent evidence of record, as well as this remand Order, must be made available to and reviewed by the examiner. Any indicated studies must be conducted. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during military combat and observable symptomology. All pertinent symptomology, including any continuity of symptomology since military service, and findings must be reported in detail. Based upon a review of all pertinent evidence in the Veteran’s claims file, including the examination results, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s thoracolumbar spine condition(s) is due to, related to, or otherwise etiologically associated with an in-service event, injury, or disease including, but not limited to, carrying heavy ammunition while serving in combat. In offering the above opinion, the examiner must consider and discuss as necessary all pertinent evidence of record including, but not limited to, the January 2019 private treatment note by Dr. P.B. indicating that the Veteran’s lumbar spine degenerative disc disease is “[p]artially service related, or wholly service related (military) probably with heavy lifting (mortar patrol infantry).” A complete rationale for all opinion(s) rendered must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, 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.