Citation Nr: 20043845 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 12-19 181 June 30, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Army from September 1969 to April 1972. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. See Introduction portion of the April 2018 Board decision detailing procedural history. In April 2018, the Board denied entitlement to service connection for a low back disability. The appellant appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). While the matter was pending before the Court, in October 2019, the appellant’s then-attorney and the VA General Counsel filed a Joint Motion for Partial Remand. In December 2019, the Court granted the Joint Motion, vacated that portion of the Board’s April 2018 decision which denied service connection for a low back disability, and remanded the matter to the Board for readjudication consistent with the Joint Motion. Also in its April 2018 decision, the Board remanded the issues of entitlement to service connection for a skin disability, a tongue disability, right chest costochondritis, and a disability manifested by right hand shaking for additional evidentiary development. A review of the record indicates that the RO is still undertaking the development ordered by the Board. Thus, those issues will be the subject of a future Board decision, if otherwise in order. Entitlement to service connection for a low back disability The appellant contends that his current low back disability is the result of an in-service motor vehicle accident. The appellant’s service treatment records show that in August 1970, he was hospitalized after he slipped and fell from a truck. Hospitalization records note a contusion of the left chest and a contusion of the right knee but no complaints or findings of a low back disability. Subsequent service treatment records, however, document the appellant’s reports of low back symptoms on multiple occasions, including in August 1971, September 1971, and January 1972. At his March 1972 separation examination, the appellant’s spine was examined and determined to be normal. Post-service VA treatment records show that in September 1992, the appellant sought treatment for low back pain which he indicated had been present for the past 20 years since an automobile accident in service. Specifically, the appellant reported that his back pain had been mild and intermittent until around 1984 or 1986, when he started to experience an increase in his low back pain. In addition, he reported that five days prior he heard a “snap” when he bent down to pick up a case of beer. September 1992 imaging studies did not reveal any abnormalities of the lumbar spine. The appellant was afforded a VA examination in June 2011. The diagnoses included minimal to moderate degenerative lumbar spondylosis, lumbosacral sprain/strain and sciatic neuritis, and clinical left lumbar radiculopathy. The Veteran reported that he injured his back during an in-service truck accident where he slipped and fell. He stated that he was hospitalized for 30 days and diagnosed with low back pain. Following service, he started treatment for his low back pain in 1986. The VA examiner opined that it was less likely as not that the appellant’s current low back disability had been incurred during service. The VA examiner acknowledged that the appellant had been treated on several occasions during service for low back pain, but indicated that there was no evidence of treatment for low back pain for several years after his separation from service. Therefore, the VA examiner concluded that the appellant’s in-service low back pain was acute and transitory and resolved with the military treatment given at that time. In the October 2019 Joint Motion, the parties agreed that a remand was warranted because the Board failed in its April 2018 decision to address whether the record established continuity of symptomatology. The parties directed the Board to consider whether a medical opinion was needed to address the question of whether the appellant’s reported symptoms were sufficient to establish entitlement to service connection based on a continuity of symptoms. See 38 C.F.R. § 3.303(b). In Miller v. Wilkie, 32 Vet. App. 249 (2020), the Court held that a VA medical opinion is inadequate where the examiner fails to address the appellant’s relevant lay statements that he has had symptoms of the disability for which he is claiming service connection in and since service. The VA examiner is required to “address the appellant’s lay statements to provide the Board with an adequate medical opinion,” in part because “medical opinions can inform credibility findings.” For the above reasons, the Board finds that an examination is necessary so that the examiner may consider the details regarding the nature, onset, progression and severity of the appellant’s reported symptoms in service, and thereafter, and provide a nexus opinion in light of those factors. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this claim is REMANDED for the following action: 1. Provide access to the appellant’s claims file to an appropriate clinician for the purposes of obtaining a medical opinion regarding the etiology of the appellant’s current low back disability. After reviewing the record, the examiner is asked to provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (a 50% or greater probability) that the appellant’s current low back disability had its inception during active duty, was manifest to a compensable degree within a year of separation, or is otherwise causally related to active duty? In providing this opinion, the examiner should consider the relevant evidence of record, to include the appellant’s service treatment records noting complaints of back pain and the post-service treatment records noting complaints of mild, intermittent back pain since service which began to worsen in 1984 or 1986. (Continued on the next page)   In providing the requested opinion, the examiner should consider the appellant’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant’s reported low back symptoms. If there is any medical reason to accept or reject the proposition that the appellant’s reported symptoms in service and thereafter represented the onset of his current low back disability or disabilities, this should be noted. Stated another way, do the appellant’s reports about his symptoms align with how the currently diagnosed low back disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? If the clinician determines that the opinion cannot be provided without an examination, one should be scheduled. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.