Citation Nr: 21003018 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-60 918 DATE: January 19, 2021 REMANDED Entitlement to service connection for a lower back condition, to include sacroiliac strain, spondylolisthesis of the fifth lumbar vertebra, osteoarthritis, and degenerative changes with radiculopathy, is remanded REASONS FOR REMAND The Veteran served on active duty from June 1956 to January 1957 This case comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2020. Although the Veteran originally filed a claim for service connection for spondylolisthesis, the Board is expanding the claim to a lower back condition, to include sacroiliac strain, spondylolisthesis of the fifth lumbar vertebra, osteoarthritis, and degenerative changes with radiculopathy. As such, the issue on appeal has been recharacterized accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Also, although the Veteran’s claim has been denied previously, most recently in July 2008, VA soon thereafter received his service treatment records. These records contain examination reports that are relevant to the claim at hand. Accordingly, the Veteran’s claim will be addressed as de novo by the Board. 38 C.F.R. § 3.156(c). In February 2017, the Veteran was afforded a VA examination to determine whether the Veteran’s spondylolisthesis, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by the jumping injury. The examiner found that the Veteran’s lower back condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner opined that the Veteran’s back was asymptomatic for 34 years after service, until 1991. The examiner went on to state that the Veteran’s lower back condition was less likely than not related to military service. The VA examiner failed to address relevant lay statements in the record prior to the examination. In the Veteran’s August 2016 Notice of Disagreement, he wrote that he has had chronic pain since service. In addition, the Veteran submitted a VA Form 21-4138 Statement in Support of Claim that also described his chronic pain for almost 60 years. A medical opinion based solely on the absence of documentation in the record is inadequate, and a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, a remand is required. The matters are REMANDED for the following action: 1. After completing additional needed development, afford the Veteran a new VA examination with the appropriate clinician, to determine the nature and etiology of his lower back conditions. The Veteran’s entire claims file, including all statements submitted by the Veteran and the December 2020 hearing transcript, must be made available for review by the examiner in conjunction with the examination. The examiner must review the claims folder, and this fact must be noted in the accompanying medical report. Based upon a review of the claims file, the examiner must answer the following questions: Ascertain whether any of the Veteran’s lower back conditions, to include sacroiliac strain, spondylolisthesis of the fifth lumbar vertebra, osteoarthritis, and degenerative changes with radiculopathy, clearly and unmistakably preexisted military service. The VA examiner is reminded that the response to this question must be phrased in the exact terms (clearly and unmistakably preexisted) presented in this remand. If any of the Veteran’s lower back conditions clearly and unmistakably preexisted military service, the VA examiner is requested to provide an opinion as to whether the Veteran’s foot disabilities were clearly and unmistakably NOT aggravated by military service. The VA examiner is reminded that the response to this question must be phrased in the exact terms (clearly and unmistakably NOT aggravated) presented in this remand. If any of the Veteran’s lower back disabilities did NOT clearly and unmistakably preexist military service, the VA examiner is requested to provide an opinion as to whether such lower back conditions are at least as likely as not (a 50 percent or greater probability) etiologically related to military service. The VA examiner is reminded that the response to this question must be phrased in the exact terms (at least as likely as not) presented in this remand. All opinions must be supported by a rationale that is consistent with the opinions presented. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.