Citation Nr: 21061687 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-27 308 DATE: October 5, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1977 to November 1977 and October 1978 to January 1980. In August 2021, the Minnesota Department of Veterans Affairs submitted a communication to the Board of Veterans' Appeals (Board) possibly attempting to withdraw its representation of the Veteran in this claim. However, the Veteran's appeal was already certified to the Board at this time and the Minnesota Department of Veterans Affairs did not submit a motion to withdraw as representative in the matter. Once a legacy appeal has been certified to the Board, a representative may not withdraw services as a representative unless good cause in shown in motion. 38 C.F.R. § 20.6. As no good cause was presented, the Minnesota Department of Veterans Affairs remains the Veteran's representative in the appeal. Entitlement to service connection for a lumbar spine disorder is remanded. The Veteran contends that he has a lumbar spine disorder that is related to active duty service. Specifically, he contends that he hurt his back during advanced individual training in 1977 and it has caused continuous pain ever since. While the Board regrets further delay, it finds that a remand for an addendum medical opinion is required. The Veteran underwent a VA examination in January 2017, and the examiner opined that it is less likely than not that the Veteran's lumbar spine disorder is related to active duty service because the medical evidence is consistent with episodic muscle strain related to a "level of activity that pre-dated entrance into service," but acknowledged that ongoing back pain and scoliosis was noted upon separation from service in December 1979. Furthermore, the examiner stated that there is no medical evidence of ongoing or recurrent back pain until 2016 when the Veteran was prescribed a back brace with no diagnosis made. As such, the examiner stated that there is no causal relationship between the Veteran's current back disorder and active duty service. The Board finds this opinion inadequate. First, the examiner failed to discuss all the in-service complaints of back pain in service, including when he sought treatment in May 1979 for low back pain and reported that he had a history of low back pain since 1977. Furthermore, the examiner acknowledged that the Veteran's separation examination noted he had lower back pain and scoliosis but failed to adequately explain how his current back pain is not related to the consistent reports of back pain for at least two years in service. Next, the examiner stated that the Veteran's in-service back pain was related to an activity level that pre-dated entrance into service, but both of the Veteran's entrance examinations in March 1977 and October 1978 fail to indicate any evidence of back disorders or complaints by the Veteran of a history or back pain. The examiner did not cite to any evidence or provide any explanation as to why they believe that the Veteran's back pain in service was related to activity that pre-dated service, particularly when the records indicate he first hurt his back in service in September 1977, and subsequent reports of back pain in service appeared to be caused by training or weightlifting. Additionally, if the examiner had reason to believe that the Veteran's back conditions pre-dated service, they did not provide an opinion as to whether this pre-existing condition was aggravated beyond its natural progression by active duty service. Furthermore, the examiner supports the negative nexus opinion by stating the Veteran did not seek treatment for back pain until 2016. However, the Veteran submitted statements indicating that he has suffered back pain since his initial injury in 1977, and as early as March 2005, there are medical records indicating chronic low back pain, which the Veteran reported to his physician "occurs every few years." There are additional treatment records for low back pain in September 2009, June 2010, April 2011, and January, November, and December 2016. Lastly, based on a letter dated July 25, 2017 and the August 2021 communication from the Veteran's representative, it appears that the Board may not have the Veteran's current contact information, and evidence suggests he may have been experiencing homelessness in the past. As such, the Regional Office (RO) should make attempts to obtain the Veteran's current contact information. The matters are REMANDED for the following action: 1. The RO should attempt to obtain the Veteran's current address and phone number and document such attempts in the record. 2. Forward the claims file to the VA examiner who conducted the January 2017 examination (or to another VA examiner if the original examiner is unavailable) for an addendum opinion as to (a) whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's lumbar spine disorder(s) had its onset in, was aggravated by, and/or is otherwise etiologically related to the Veteran's period of service. The Board notes that the Veteran's examination upon entrance into service does not reflect any evidence of a low back disorder. As such, any finding that a lumbar spine disorder preexisted service must be based on clear and unmistakable evidence. (b) Further, if the examiner determines that the Veteran's lumbar spine disorder(s) preexisted service, they should provide an opinion as to whether it is clear and unmistakable (obvious and manifest) that the preexisting lumbar spine disorder(s) was not aggravated by service. The examiner should identify the factual evidence that supports this finding. In providing the requested opinion, the examiner is advised that the evidentiary standard for whether a condition existed prior to service and/or was aggravated by service is "clear and unmistakable," which is a formidable evidentiary standard. It requires this finding to be "undebatable." The examiner should review all the evidence of record, and it would be most helpful if such review were noted. A complete rationale should be provided for all opinions. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel