Citation Nr: 21001128 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-35 157 DATE: January 7, 2021 REMANDED Entitlement to service connection for a low back disability, to include degenerative arthritis of the spine and lumbar spondylosis, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from June 1968 to June 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico. A November 2013 VA Form 9, Substantive Appeal to the Board, indicates the Veteran wanted a videoconference hearing before the Board. However, in May 2015 correspondence, he withdrew that hearing request. 38 C.F.R. § 20.704(e) (2019). The Veteran’s claim was remanded by the Board in May 2016 to obtain a VA examination. In January 2018, the Veteran’s claim was denied by the Board. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Memorandum Decision, the Court vacated and remanded the Board’s January 2018 decision for further proceedings. This case was last before the Board in January 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a low back disability, to include degenerative arthritis of the spine and lumbar spondylosis, is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. The June 2019 Court Memorandum Decision vacated and remanded the Board’s prior denial of this claim largely because the Board relied on a VA examination that did not take into account the Veteran’s lay statements describing his in-service parachuting duties and continuity of back symptomatology since service. Following the Board’s January 2020 remand, a new examination and etiology opinion was obtained for the Veteran’s claim in compliance with the June 2019 Court Memorandum Decision. The VA examiner who conducted the examination opined that it is less likely than not that the Veteran’s low back disability was related to active duty service due to the fact that the first record of back pain was in 2010 and the Veteran’s service treatment records did not show symptoms, diagnosis, or treatment for low back pain. The examiner further noted that the Veteran’s diagnosis was more likely related to the aging process in light of “today’s Veteran lay statement.” The examiner noted review of the June 2019 Court decision as well as the 2011 private opinion, which linked the Veteran’s back condition to his in-service parachuting duties, but found the opinion based on a “subjective narrative” and lacking in “clinical and objective findings such as a physical examination, radiological imaging, or review of [the Veteran’s service treatment records].” The examiner did not specify what the Veteran’s lay statements were the day of the examination nor did the examiner indicate whether his statements describing in-service parachute jumps and/or back pain since then was considered in rendering the decision. It is noteworthy that while the Veteran’s service treatment records do not indicate any complaints, treatment, or diagnoses related to back pain, his DD-214 does confirm receipt of a parachutist badge. A layperson is generally competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to a person through his or her senses. See Layno v. Brown, 6 Vet. App. 465 (1994). When an examiner fails to address a veteran’s lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. See Miller v. Wilkie, 32 Vet. App. 249 (2020). In this case, while the January 2020 VA examiner did not ignore the Veteran’s lay statements altogether, it is not entirely clear whether they were properly considered. In light of the Court’s prior Memorandum Decision, the Board finds a clarification opinion is necessary to ensure compliance with the Court Order. As an aside, it appears the Veteran is also now asserting a new theory of entitlement to service connection that has not been properly developed. In particular, in October 2019, the Veteran’s representative raised the argument that the Veteran’s low back disability was related to his service-connected right knee disability. No opinions have addressed this theory. As such, remand is needed to explore this further. See Stefl v. Nicholson, 21 Vet. App. 120, 123, 124-25 (2007) (noting that an examination must provide “sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one’” and must “support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The matter is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Obtain a clarifying opinion, from an appropriate examiner, to determine the nature and etiology of the Veteran’s low back disability. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran’s low back disability began during his service, within a year of his discharge, or is otherwise related or attributable to a disease, event, or injury inservice, to include as due to parachuting? b) Is it at least as likely as not (50 percent or greater probability) that a low back disability was caused or aggravated by the Veteran’s service-connected right knee disability. • If the examiner finds that the low back disability, was aggravated by his service-connected right knee disability, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected right knee disability. (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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) In so doing, the examiner MUST discuss the Veteran’s lay assertions that he injured his back parachuting in service and had back pain as a result. The examiner MUST also discuss the May 2011 private opinion. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. (Continued on the next page)   The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.