Citation Nr: A21016337 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 210907-183186 DATE: October 5, 2021 REMANDED Entitlement to service connection for a low back disability, to include intravertebral disc syndrome (IVDS) and degenerative arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to July 1970, to include service in the Republic of Vietnam. The rating decision on appeal was issued in July 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In July 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a June 2021 rating decision based on new and relevant evidence. In July 2021, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal in July 2021. The July 2021 rating decision found that new and relevant evidence had been received to readjudicate the claim of entitlement to service connection for IVDS. This is a favorable finding by the AOJ, and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for a low back disability, to include intravertebral disc syndrome (IVDS) and degenerative arthritis, is remanded. The Veteran contends that his low back disability, diagnosed as IVDS and degenerative arthritis, is due to service. Specifically, he reported "2 satchel charges" exploding next to him where it "threw me about 15 feet to the far wall". See July 2021 VA 21-0781 Statement in Support of Claim. He also contends that he should be afforded combat presumption. Id. The Board finds that the Veteran's military record, and the July 2021 AOJ decision granting service connection for posttraumatic stress disorder that found the Veteran was a combat Veteran, implicate the combat presumption under 38 U.S.C. § 1154 (b). The Veteran was afforded a VA examination in June 2021 to determine whether the claimed low back disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that the claimed low back condition is less likely than not due to service. By way of rationale, the examiner found that the Veteran had been seen for low back pain in 1967 and found that the low back pain was acute only. Additionally, the examiner found that the absence of treatment for low back pain from 1967 to 2017 made it less likely than not due to service. Turning to the evidence of record, the Veteran's service treatment records (STRs) document multiple complaints for low back pain during service. A December 1966 STR documented low back pain and multiple January 1967 STRs document continued complaints of low back pain. Finally, a January 1970 STR entry notes a complaint of low back pain. VA treatment records document the Veteran first complained of low back pain in October 2010 and next in September 2017 where he suffered a compression fracture. The Board finds that the June 2021 VA opinion is inadequate as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). The examiner failed to document and discuss the Veteran's multiple documented complaints of low back pain in service. The examiner also incorrectly found that the Veteran had not complained of low back pain until 2017, though VA treatment records reveal the Veteran first complained of back pain in October 2010. Moreover, the Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board finds a pre-decisional duty to assist error has occurred, as the examiner failed to discuss the Veteran's lay statements that he injured his back in a mortar attack in Vietnam. The examiner's opinion summarily notes that the Veterans service treatment record documents a single complaint of low back pain, probably acute in nature. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). As noted above, the Veteran was seen on multiple occasions for complaints of low back pain. Under the AMA, the Board has the duty to remand issues when necessary to correct a pre-decisional duty to assist errors. See Pub L. No. 115-55 (2)(d); 38 C.F.R. § 20.802 (a). The matter is REMANDED for the following action: 1. Schedule the Veteran with an appropriate examiner to determine the nature and cause of the Veteran's IVDS and degenerative arthritis. The examiner shall list all disabilities of the low back diagnosed and should provide an opinion for each as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disability (1) had an onset in service, (2) manifested within one year from service, OR (3) is otherwise related to service, to include from the combat injury sustained by the Veteran in Vietnam. The examiner must consider the Veteran's lay statements re the continuity of symptoms since service. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.