Citation Nr: 21063625 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 14-08 338 DATE: October 14, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1988 to August 1988, January 1995 to June 1995, and October 2003 to April 2005, with service in Iraq from March 2004 to March 2005. The DD Form 214 for the period from June 1988 to August 1988 does reflect an additional one month and 29 days of prior active duty service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in July 2012. By way of history, service connection for a lumbar spine disability was originally denied in a final rating decision issued in March 2009. The RO's July 2012 rating decision, in relevant part, continued the previous denial of service connection. In a January 2016 decision, the Board found that the Veteran had presented new and material evidence to reopen his claim of service connection for a back disability and remanded the matter for evidentiary development. This matter was again before the Board in March 2018, June 2020, and May 2021 and was remanded each time for additional development. Entitlement to service connection for a lumbar spine disability is remanded. The Board's May 2021 decision found that an August 2020 VA examination and November 2020 addendum opinion inadequate because the examiner did not discuss the Veteran's contentions that his back disability is related to wearing heavy equipment, carrying heavy artillery, injuring his back while lifting weights during service, and/or tweaking his back while loading boxes on and off of a truck. The Board also noted that the examiner failed to consider 2008 X-rays showing degenerative changes in the back and a December 2008 treatment note indicating that the Veteran reported back pain beginning in 2005. An addendum medical opinion was issued in May 2021, wherein the VA examiner opined that the Veteran's back disability is less likely than not related to his active duty service. In support of his opinion, the examiner stated that the Veteran's treatment records showed no complaints of, or treatment for, back pain during service or for three years following his separation from service. The Board finds the May 2021 medical opinion inadequate because the examiner relied exclusively on the absence of evidence of treatment in reaching his conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative etiology opinion). The examiner also failed to substantially comply with the Board's remand instructions to discuss the Veteran's hearing testimony, letters from private treatment providers dated in June and October 2018, and a December 2008 treatment note indicating that the Veteran reported that his back problems began in 2005. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The Veteran submitted statements in August 2021 by B.B. and A.S., both of whom served with the Veteran. Both letters state that the Veteran injured his back while exercising in the gym during his deployment in Iraq and could barely walk after the injury. A.S.'s letter also indicates that the Veteran told him that he would not seek medical care because he worried that his injury could medically disqualify him from commanding his soldiers in combat. In light of these statements and the inadequacies of the May 2021 medical opinion, the Board finds that a remand is warranted to obtain an additional opinion that is supported by adequate rationale and considers the Veteran's testimony and the letters from B.B. and A.S.. The matter is REMANDED for the following actions: 1. Take all necessary steps to verify all periods of the Veteran's active duty service, including active duty for training (ACDUTRA), inactive duty training (IDT), and/or active duty for special work. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's active duty, including ACDUTRA, IDT, and/or active duty for special work service are required. If any of this information or documentation is unavailable, this fact should be documented, and a formal finding of unavailability should be made. Notice should be given to the Veteran and his representative, and they should be given an opportunity to respond. 2. After completing #1, obtain an addendum medical opinion from a qualified VA examiner. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. After reviewing the evidence, the examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar spine disability is caused by, or is otherwise related to, his active duty service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar spine disability manifested itself to a compensable degree within one year of his separation from active duty service? (Continued on the next page) The examiner must provide a comprehensive rationale for each proffered opinion. The examiner's rationale should include discussion of the Veteran's hearing testimony, letters from his private treatment providers dated in June and October 2018, and 2008 treatment records noting that the Veteran has complained of back pain since 2005, and letters from A.S. and B.B. indicating that the Veteran sustained an in-service back injury and avoided medical treatment. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. The examiner is also advised that a negative opinion may not be based solely on an absence of evidence of a back injury in the Veteran's service treatment records. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.