Citation Nr: 20040554 Decision Date: 06/15/20 Archive Date: 06/15/20 DOCKET NO. 14-05 325 DATE: June 15, 2020 REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from August 1976 to December 1976 and from December 1990 to May 1991, along with subsequent service in the Army National Guard and Reserves. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a low back disorder, to include as secondary to service-connected disabilities. The Veteran contends that his low back disorder is the result of his military service, including being caused or aggravated by his service-connected right ankle disability. A review of the evidence of record indicates that the Veteran applied for Social Security Administration (SSA) disability benefits. The records upon which this determination was based are not of record and have not been requested. The Court of Appeals for Veterans’ Claims has held that VA’s duty to assist encompasses obtaining medical records that supported an SSA decision regarding disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). SSA records are relevant to a claim and VA must obtain them where either (1) there is a Social Security decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the Social Security records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The Board reasonably believes that SSA may possess relevant records pertaining to this claim. A remand is warranted in order to request and associate these records with the Veteran’s claims file. In addition, the Board remanded this matter in March 2018 to obtain a new VA examination regarding the nature and etiology of the claimed back disorder. The Veteran underwent a VA examination in January 2020. He was diagnosed with degenerative disc disease of the lumbar spine. In addition, he reported complaints of back pain resulting from heavy lifting in 1991. Additionally, he reported current back complaints that increased with physical activity and has remained constant since service. The examiner then gave a negative opinion that the back disorder was the result of military service. The examiner noted that a review of the service treatment records (STRs) revealed back complaints in January 1991, but this complaint did not show any persistent low back conditions as there was no documentation of continuation of symptoms. The examiner also noted the Veteran did not mention that his back condition was due to service during the clinical interview, stating that his civilian work required heavy lifting. The examiner then gave a negative opinion that the low back disorder was caused or aggravated by his right ankle disability. The examiner noted that there was no change in the Veteran’s gait to account for any chronic joint damage to corresponding joints and, as such, there would be no medical reason for an ankle condition that would cause or aggravate a back condition. No other opinions or rationale were provided. The Board finds the opinion is inadequate because it relies, in part, on the lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The Court has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Furthermore, the Veteran has stated that he has experienced continuous back pain complaints from active duty to the present. The examiner failed to consider this evidence when he rendered his opinion. An opinion based on an inaccurate factual background is not entitled to any probative value. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the January 2020 VA examination is inadequate based on the examiner’s failure to consider all the evidence of record. As such, the Board remands this matter for the issuance of an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Request from SSA copies of all records considered in the award of SSA disability benefits to the Veteran. All records/responses received should be associated with the claims file. If records are unavailable, SSA should so indicate. The Veteran is to be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. Id. 3. Once the above has been completed to the extent possible, obtain an addendum VA opinion regarding the nature and etiology of the Veteran’s back disorder from a medical professional with appropriate expertise. The claims file must be reviewed by the examiner. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disorder has its onset in service or is otherwise related to service? The examiner must address the Veteran’s continuous back pain complaints since active duty service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.