Citation Nr: 21062576 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-02 397 DATE: October 8, 2021 REMANDED Service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to November 1974. In May 2021, the Board of Veterans' Appeals (Board) remanded his claim to the agency of original jurisdiction (AOJ) for an addendum medical opinion. The Board instructed the examiner on remand to consider and discuss the pertinent evidence of record, including the Veteran's lay statements, July 2017 hearing testimony and complaints to medical providers about the onset of his low back disorder. The AOJ obtained a new opinion from a VA contract examiner in July 2021. Ultimately, the July 2021 examiner determined it is less likely than not that the Veteran's degenerative spine disease and/or lumbar strain are due to or were incurred in service. The examiner also determined it is less likely than not that his disability is secondarily due to or aggravated by his service-connected inguinal hernia. This opinion is based, in part, on the examiner's finding that there is no evidence of a back condition either in service or "until in or around 2012," when the Veteran was diagnosed with degenerative disc disease. The Board finds the July 2021 addendum opinion inadequate because the examiner failed to address the Veteran's lay statements about the onset of the claimed disability, as instructed. Miller v. Wilkie, 32 Vet. App. 249, 259-60 (2020) (a VA examiner "must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Similarly, the opinion does not appear to be based on an accurate medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (VA "must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history"). The record contains lay and medical evidence of back pain prior to 2012, which the July 2021 examiner apparently overlooked. In particular, the Veteran testified in 2017 that he first started experiencing back problems around 1985, "but it really bothered [him] a little bit when [he] was in the service." He also testified that he sought medical treatment for back pain during service. Service treatment records show that he complained of low back pain in January and February 1973; he was diagnosed with mild intervertebral muscle spasm. Later medical records document treatment or complaints of back pain in 1978, 1985, 1986, 1987, 1988, 1989, and 1996. Furthermore, a June 2017 letter from "Dr. D.W.K." indicates that the Veteran has experienced chronic back pain, sciatica and lumbar radiculopathy for more than 20 years (i.e., since at least 1997). A July 2017 lay statement from the Veteran's spouse ("M.H.") also notes a history of low back pain since the early 1980s. The July 2021 opinion does not acknowledge any of this evidence. Instead, it is based on the assumption that the Veteran's back problems started in or around 2012. The opinion is thus inadequate. Another remand is necessary to ensure compliance with the Board's previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the examiner must discuss the Veteran's lay statements and provide an accurate medical history. The examiner should also discuss the articles on ilioinguinal nerve pain and hernias and back pain cited in the Veteran's May 2021 and September 2021 briefs, respectively. Lastly, the Board notes that the most recent VA treatment records on file are from December 2015. The Veteran stated at his 2017 hearing that he was currently receiving treatment at a VA pain clinic. This testimony suggests there are outstanding VA treatment records that may be relevant to his appeal. The AOJ should obtain them on remand and make them available to the examiner. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion on the nature and etiology of the Veteran's low back disorder. After reviewing the claims file, including this remand, the examiner must address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the low back disorder was incurred in service, or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the low back disorder became manifest within one year of separation from service? If so, what were the manifestations? (c.) Is it at least as likely as not (50 percent or greater probability) that the low back disorder is proximately due to the Veteran's service-connected inguinal hernia? (d.) Is it at least as likely as not (50 percent or greater probability) that the low back disorder is aggravated beyond its natural clinical course by the Veteran's service-connected inguinal hernia? The examiner must discuss the Veteran's lay statements concerning the onset of the claimed disability, and provide an accurate medical history. The examiner must also discuss the articles on ilioinguinal nerve pain and hernias and back pain cited in the Veteran's May 2021 and September 2021 briefs, respectively. 3. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 4. Readjudicate the Veteran's claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.