Citation Nr: 21065094 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-39 964 DATE: October 25, 2021 REMANDED Service connection for low back disability (claimed as severe lower lumbar pain) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to June 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for severe low back pain. The Veteran's notice of disagreement was received in March 2017. The RO issued a statement of the case in May 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in July 2017. In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Entitlement to service connection for low back disability. The Veteran contends that his current low back disability, diagnosed as spondylosis with degenerative changes, is the result of a back injury during active duty in which he fell forward into a rice paddy trench with a 50-pound backpack weighing on him resulting in back numbness at the time. See June 2021 Board hearing transcript at 3. In the alternative, at the Board hearing, the Veteran indicated that he has a leg length discrepancy, which he believes is due to right knee shrapnel wounds suffered in service. Notably, the Veteran has service-connected right knee scarring that is due to in-service shrapnel wounds. To date, there is no opinion on whether the Veteran's back disability is, as likely as not, related to the in-service shrapnel wounds and residuals therefrom. In the case of any veteran who engaged in combat with the enemy in active service, with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstance, conditions, or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). During his June 2021 Board hearing, the Veteran testified to falling forward into a rice paddy trench with a 50-pound backpack weighing on his back and subsequently was subject to shrapnel wounds to his right arm, right knee, and the back of his neck. According to the Veteran's DD-214, he was awarded the Combat Acton Medal, Purple Heart, Vietnam Service Medal, and Vietnam Campaign Medal. Given the Veteran's combat status in Vietnam, his reports of injury during service are presumed. 38 U.S.C. § 1154(b). Nonetheless, this statute does not eliminate the need for evidence of a nexus between any current disability and the presumed in-service symptoms of disease or injury; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). The Veteran also testified that he was treated at a VA facility in the 1980s at which time they found his "leg was short." See June 2021 Board hearing transcript, at 14. The Veteran was afforded a VA orthopedic examination in September 1976 in which the examiner found a slight pelvic tilt and the shortening of the right leg of approximately 12 an inch. At a September 2016 VA examination of the Veteran's low back, the examiner opined that his current disability was less likely than not incurred in or caused by the claimed in service injury, event, or illness and provided the following rationale: Based on current examination and medical record review, the degenerative joint disease of the lumbar spine is a condition of the aging process that is independent of the claimant's active military career. Therefore the claimed condition is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's medical opinion did not address the Veteran's pelvic tilt and leg discrepancy, or whether the Veteran's in-service shrapnel injuries, including to the right knee, as likely as not, caused or aggravated the Veteran's current low back disability. Accordingly, a new examination and opinion is warranted. As such, a remand is necessary for a complete medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following actions: 1. Request from the Veteran and his representative information regarding what VA facility (ies) he has been treated for his back disability since service to include from the 1980s. Once that information has been received, obtain and associate those records with the claims file. 2. Schedule the Veteran for a VA examination, preferably with an orthopedic specialist, to determine the likely current nature and etiology of the Veteran's low back disability. The claims file, including this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. In this regard, as noted above, the Veteran's report of a back injury in service is conceded because it is consistent with his combat service pursuant to 38 U.S.C. § 1154(b), even though there is no record of this injury in his service treatment records. In addition, the service treatment records reflect that the Veteran incurred shrapnel injuries to his right knee, and a VA examination from 1976 confirms a leg length discrepancy. Following all necessary testing the clinician should address the following inquiries: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current low back disability is related to any in-service injury or disease, to include the leg length discrepancy and/or the right knee shrapnel wound injury? Although the Veteran's report of a low back injury is not documented in service treatment records, the in-service injury must be conceded because the Veteran is a combat Veteran and it's the type of injury that's consistent with the type of service in Vietnam. (b.) If the examiner determines that the Veteran's current low back disability is less likely than not the result of an in-service injury that this combat Veteran has described, then please provide an opinion whether it is as likely as not that the Veteran's current back disability is related to any other disease or injury in service including any shrapnel wounds to the right arm, right knee, and back of the neck. In this regard, the documentation from the September 1976 VA examination reflects that the Veteran had a pelvic tilt and a 12 inch leg length discrepancy and if that is the result of any in-service injury or service-connected disability, is it at least as likely as not that the Veteran's current low back disability be the result of those injuries or conditions? In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) A rationale for any opinion offered should be provided. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.