Citation Nr: 20021678 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-22 574 DATE: March 26, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1953 to February 1955. The matter on appeal was previously before the Board in August 2018, when the case was remanded for further development. The case has returned to the Board for additional appellate action. In February 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Service connection for a low back disability. In its August 2018 decision, the Board remanded the issue of service connection for a low back disability and instructed the agency of original jurisdiction (AOJ) to obtain outstanding service and medical records necessary to substantiate the Veteran’s claim and then schedule him for a VA examination. At the outset, the Veteran’s claims file does not appear to contain his complete service personnel and treatment records. Though the Veteran testified that he was placed in a light-duty profile for 16 months during his service overseas, the medical and personnel records related to this profile are not of record. In a November 2019 letter, the AOJ informed the Veteran that his service treatment records (STRs) could not be located and therefore were unavailable for review and instructed him to send any information or evidence within 10 days. The AOJ’s determination of unavailability of records was based on the National Personnel Records Center response, which indicates that the Veteran’s complete organization information (company, battery, type of battalion or regiment) was required to complete the requested search. In November 2019, the Veteran timely submitted the required organization information. However, the claims file does not reflect that continued efforts were conducted to obtain the complete service personnel and treatment records. Thus, an additional remand is necessary to attempt to obtain these records and associate them with the claims file. See 38 C.F.R.§ 3.159(e). The Veteran was afforded a VA back examination in September 2019. The examiner noted that diagnostic imaging of the lumbar spine revealed degenerative disc disease (DDD) and degenerative joint disease (DJD). The examiner opined that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of this opinion, the examiner observed that the Veteran was seen in service for complaints of low back pain that was diagnosed as functional low back pain and a June 1953 radiograph was normal with no evidence of back disease or arthritis. The examiner also noted the Veteran was sent to a mental health evaluation in August 1953 due to multiple sick call visits (11 times in 3 months) for back pain. The August 1953 clinician opined that the Veteran could “be using his somatic complaints to a certain extent in the manner of passive obstructionism.” However, the clinician determined this “personality defect” would not interfere with the Veteran’s ability to perform duty and cleared him from a psychiatric standpoint for any administrative action including separation under AR 615-369 (discharges by reason of inaptness, lack of required degree of adaptability, or enuresis). In light of the June 1953 normal back radiograph and the absence of in-service back treatment or complaints after August 1953, the examiner determined that the Veteran did not have lumbar DJD or DDD in service. Further, the examiner stated that the Veteran’s in-service diagnosis of functional low back pain was likely a lumbar strain from lifting. The examiner also indicated that treatment consisting of rest, muscle relaxers, and ibuprofen typically resolve lumbar strains in several weeks. The examiner, however, failed to relate the details of the Veteran’s condition and circumstances to the general medical and statistical evidence. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for the examiner’s conclusion). The Board finds the September 2019 VA medical opinion is inadequate for adjudication purposes. The examiner disregarded the Veteran’s lay statements recounting symptoms during and since service and based her opinion that there is no nexus to service on the absence of in-service corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, though the examiner determined that the Veteran’s current lumbar DJD and DDD were not present during service, she did not address whether the Veteran’s current back disability is related to his in-service back injury and diagnosis of functional low back pain. In this regard, the Board notes that service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Thus, a remand is also warranted to obtain an adequate VA opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain the above-described outstanding service treatment and personnel records and incorporate them into the claims file. If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, forward the Veteran’s file to an appropriate clinician who has sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s low back disability. All pertinent evidence of record, to include a complete copy of this remand order, must be made available to and reviewed by the examiner. An additional examination of the Veteran should be performed only if the clinician providing the opinion deems it necessary. Based on a review of the evidence of record, lay statements, and examination (if necessary), the examiner should opine as to whether any diagnosed low back disability was at least as likely as not (a 50 percent probability or greater) incurred in service or is otherwise etiologically related to the Veteran’s active service, to specifically include as a result of his in-service back injury and diagnosis of functional low back pain. (Continued on the next page)   3. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms experienced during and since service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide a required opinion without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinion is based on a lack of knowledge among the medical community at large. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.