Citation Nr: 20039999 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-12 056 DATE: June 11, 2020 REMANDED Service connection for lumbar spine disorder is remanded. Service connection for neurologic abnormality of the left lower extremity (LLE), to include as secondary to a lumbar spine disorder, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from August 1972 to June 1975 and from October 1976 to March 1978. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This issue was previously before the Board in August 2019, when it was remanded for a VA examination. That development was completed, and the case has since been returned to the Board for appellate review. Additionally, the record reflects the Veteran’s complete service treatment records (STRs) for the August 1972 to June 1975 period of service are unavailable. In light of the missing STRs, the Board has a heightened obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt doctrine. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There is not, however, a lower legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). The Board’s analysis of the Veteran’s claim has been undertaken with the heightened duty in mind. 1. Service connection for a lumbar spine disorder is remanded. Remand is required for an addendum medical opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran underwent a new VA examination in February 2020. The examiner provided a negative nexus opinion, maintaining that the Veteran’s chronic back pain pattern was caused by years of working in highly physical capacities. However, the examiner also opined that it is very likely that multiple accidents or injuries incurred while intoxicated over the years, and that these likely would have contributed to his lumbar spine disorder. While the claims file does reflect that the Veteran has a history of alcohol abuse, there is only one entry noting an alcohol related injury. STRs from July 1977 indicate that the Veteran fell on the third deck after drinking and hit his forehead. The Veteran separated from service in March 1978. According to his brother’s February 2015 buddy statement, the Veteran received treatment for his alcoholism in January 1979. June 2015 VA treatment records indicate that the Veteran was sober for 35 years until he relapsed into drinking for about a year before again becoming sober. Later VA treatment records indicate that the Veteran relapsed again, but they are also all absent of any mention drinking injuries. Based on the evidence of record, the Board finds that the examiner’s statements regarding alcohol related injuries are based on an inaccurate factual premise. Accordingly, remand is required for an addendum medical opinion. Of note, the examiner stated that some of the Veteran’s private treatment records were destroyed in a fire around 1999. The Veteran testified at his March 2019 Board hearing that the records were destroyed in a flood in 1997. This should also be addressed in the addendum opinion. 2. Service connection for a neurologic disorder of the LLE as secondary to a lumbar spine disorder is remanded. Remand is also required for the issue of entitlement to service connection for a neurologic abnormality of the LLE, as it is inextricably intertwined with the Veteran’s claim for entitlement to service connection for a lumbar spine disorder. The adjudication of the latter issue may affect the Veteran’s entitlement to the former. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the lumbar spine disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disorder had onset in, or is otherwise related to, active service. If, and only if, a positive nexus is established, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neurologic abnormality of the LLE is proximately due to or a result of his lumbar spine disorder. The examiner must address the following: 1) the Veteran’s lay statements regarding his lumbar spine injury after crawling into small spaces to work all day during service; 2) the Veteran’s wife’s Board hearing testimony that after meeting him in 1976, the Veteran’s back would go out and he would have to go to the doctor for pain; 3) the Veteran’s lay statements regarding continuous symptoms; 4) the buddy statements regarding the Veteran’s back pain; 5) August 1986 private medical record noting a history of back problems; 6) a July 1999 private treatment record noting chronic back pain and the Veteran denied knowledge of any trauma to the spine; and 7) the 2013 and 2020 VA examination reports. The examiner is reminded that the Veteran’s complete STRs for the August 1972 to June 1975 period of service are unavailable. The examiner is instructed to disregard the conclusion of the February 2020 examiner regarding alcohol related injuries. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.