Citation Nr: 21002616 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-58 080 DATE: January 14, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2000 to December 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in June 2019. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in March 2020, on which occasion the claim was remanded. Entitlement to service connection for a low back disability is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that while the record contains some of the Veteran’s service treatment records, his separation examination is not currently included in the record. As entrance and separation examinations are generally included in a veteran’s service personnel records, the Board finds that a remand is warranted so that the Veteran’s service personnel records may be associated with the claims file. Additionally, the Board finds that a new examination is necessary. In a March 2020 Board decision, the Board remanded the Veteran’s claim for a new VA examination and medical opinion. The RO complied with the Board’s remand instructions, and in September 2020 the Veteran was afforded a VA thoracolumbar spine examination with a medical opinion, wherein the VA examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by service. In rendering her opinion, the examiner noted “[t]he Veteran's medical record was silent for low back pain for a period of two years following his separation until he began seeing a chiropractor in [September] 2006.” (9/29/2020, C&P Exam, p. 2). The Board finds that the September 2020 VA medical opinion is inadequate for evaluation purposes as the examiner’s opinion was based largely on the absence of medical records during the two-year period between the Veteran’s discharge and September 2006. The Board may not consider the absence of evidence as substantive negative evidence, unless silence in the record tends to disprove the Veteran’s assertion. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In the present case, the Veteran has provided lay evidence that he received private medical care in 2005 and 2006 but was unable to submit said records because they were destroyed in accordance with his private medical provider’s standard record keeping protocol. (11/9/2020, Correspondence, p. 4). As the Veteran provided competent lay evidence that he received medical care during this period and it is common practice for private medical providers to destroy records after a specified period of time, the Board finds that the absence of medical records during this time does not tend to disprove the Veteran’s assertions. As such, the Board concludes that the absence of medical records from this period is not substantive negative evidence and, therefore, there is no basis in the record for the examiner’s factual finding that the “medical record was silent for low back pain for a period of two years following his separation . . ..” (9/29/2020, C&P Exam, p. 2). Further, in finding that there is no evidence “to support the chronicity of care for low back pain for at least two years following separation,” the examiner failed to duly consider the Veteran’s lay statements made during the September 2020 VA examination. Specifically, the Veteran indicated that he experienced back pain in mid-2005. (9/29/2020, C&P Exam, p. 2). Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, the Board finds that the September 2020 VA examiner applied an improper standard of proof. The general standard of proof in veterans’ benefits cases is the benefit of the doubt rule, which provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. See 38 U.S.C. § 5107(b). In applying the benefit of the doubt rule, VA should find for the veteran when there exists an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. In opining that the Veteran’s back disorder was not related to service because evidence does not “confirm” that he injured his back during service, the examiner applied an impermissibly high evidentiary standard. In light of the aforementioned, the Board finds that the September 2020 opinion is inadequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a new medical opinion is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel and service treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the low back disability is at least as likely as not related to an in-service injury, event, or disease, to include falling from the side of a vehicle. Additionally, the examiner must opine whether the Veteran’s report of back pain in mid-2005 is consistent with his current diagnosis of degenerative arthritis of the spine. In doing so, the examiner must consider the following evidence: (a.) Lay evidence of the Veteran falling from a truck, (1/19/2016, Buddy Statement, p. 1); (b.) Report of low back pain during an October 2004 medical assessment, (2/5/2016, STR, p. 38); (c.) Lay evidence of back pain in mid-2005, (9/29/2020, C&P Exam, p. 2); and (d.) Evidence of chiropractic care starting in November 2006 with a diagnosis of “nonallopathic lesions, lumbar region.” (1/19/2016, Correspondence, p. 5). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.