Citation Nr: 21064025 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-34 266A DATE: October 18, 2021 REMANDED Service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1982 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a Board hearing. The Veteran's claims file contains a copy of the hearing transcript. Discussion In an April 2020 decision, the Board denied service connection for a lumbar spine disability. In pertinent part, the Board found that the Veteran's lay accounts warranted diminished probative weight and a VA negative nexus opinion warranted substantial probative weight. The Veteran appealed the April 2020 Board decision to the United States Court of Appeals for Veteran's Claims (Court), which resulted in a May 2021 joint motion for remand (JMR). The parties to the JMR found that the Board erred because it failed to address medical evidence of treatment for the Veteran's back from the 1990s through the early 2000s, which contain reports of continuous back problems for 14 years. The Board did not consider this evidence in analyzing the credibility of the Veteran's report of an in service injury. Additionally, the Board erred insofar as it relied upon the lack of in-service treatment records documenting complaints of a back condition to make a negative credibility finding, without addressing the Veteran's lay statements as to why he did not seek treatment during active-duty service. The parties also found that the clinician who conducted the January 2020 examination rendered an opinion which was based upon an inaccurate factual premise because the lay evidence of injury and pain and the records of treatment from 1986 to 2009 was not considered. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Consequently, the parties directed the Board to obtain a new VA examination and opinion and that a VA clinician addresses the Veteran's medical treatment records and lay statements regarding continuous lumbar spine symptomatology since 1983. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the two issues noted above. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for a VA examination and opinion with an appropriate VA clinician with expertise in lumbar spine disabilities. The clinician must review the claims file and indicate a review in the opinion. The clinician must address all reports of symptoms (both lay and medical), including those in the January 2013 statement in support of claims; the December 2017 Board hearing transcript; an August 1996 VAMC Iowa City radiology consultation; a November 1998 VA treatment record; an October 2001 VA treatment record; and October 2002 VA treatment record; a November 2006 private treatment record. 4. Upon completion of the above directed tasks, the clinician should respond to the following inquiry. a. Whether it is at least as likely as not (50 percent or more) that the Veteran's lumbar spine disability was incurred in, caused by, or aggravated by, or otherwise attributable to, service including the lifting injury reported by the Veteran in 1983 or 1984 aboard ship? b. The examiner should consider the Veteran's reports of not seeking care after the injury because he would be considered weak and not remain aboard ship and the results of later physical examinations. The examiner should also consider the study in the Saudi Medical Journal, 2015 Jun 36(6): 725-730, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4454908 (last visited Oct. 18, 2021) cited by the Veteran as relevant to his claim. The clinician must provide complete, clearly-stated rationales for the conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.