Citation Nr: A21017235 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 210831-183687 DATE: October 25, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army from April 1957 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2021 VA Form 10182 Decision Review Request: Board Appeal Notice of Disagreement, the Veteran elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Veteran seeks service connection for a lumbar spine disability based on a back injury during active duty. The Military Personnel Record Certificate, received by VA in April 2021, shows that a back injury was sustained on June 19, 1958 during field training exercises. The Veteran said that he reported it to his commander but received no medical treatment at the time. After discharge, he underwent two lumbar fusion surgeries in 1967 and 2015 and was subsequently diagnosed with "failed fusion syndrome." If VA provides a medical examination or opinion for the issue of service connection, whether or not it was obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The March 2021 VA examination shows a diagnosis of intervertebral disc syndrome with lumbar spondylosis and bilateral lower extremity radiculopathy and a history of lumbar fusion surgeries in 1967 and 2015. The examiner noted the Veteran's reports of low back pain when jumping out of truck and landing on feet, report of pain to his superior, lack of medical treatment at the time of injury, and worsened pain since onset. An October 2015 lumbar spine MRI showed severe degenerative disc disease with stenosis, L-5 nerve root impingement, and severe stenosis at L2-4. The examiner opined that it is less likely than not that the initial injury which led to his now chronic low back pain was caused by an in-service event, based on a lack of documentation of the injury, spine surgery, and ability to continue in duty. He also cited a lack of ongoing treatment of low back pain. The examiner's report did not consider the Veteran's lay statements of January 2021 and February 2021, which reports continuity of symptomatology and continuity of care from the time of his in-service injury in June 1958 until his first back surgery nearly a decade later and loss of those treatment records. VA issued a rating decision in May 2021 denying the claim for service connection for a lumbar spine disability. In July 2021, the Veteran filed an appeal and requested a Higher-Level Review. In July 2021, the reviewer found that the May 2021 VA rating decision was based on an insufficient VA examination because the examiner's opinion had relied on a lack of records and failed to adequately address the Veteran's lay statements about back pain continuity since the time of injury. A new VA examination was requested to cure this error. In August 2021, VA subsequently obtained an addendum VA medical opinion, which was also negative to the claim. The same examiner issued an addendum opinion, again concluding that there was no nexus between the Veteran's current back condition and his in-service injury. In his rationale, he stated that his prior opinion was not based on a lack of records but based on the length of time from initial injury until the laminectomy and the lack of specific documented treatment or symptoms from injury in 1958 until acute issue/laminectomy nearly 10 years later. There is no note or discussion of the Veteran's lay statements about symptoms persisting since the time of injury, after discharge from military service, and/or reasons for a medical treatment or medical records gap. In the September 2021 Appellate Brief, the Veteran's representative argued that the VA examination was inadequate for failing to address the Veteran's lay statements about his symptoms and their continuity since discharge. Based on the foregoing discussion, as well as the assertions by the Veteran's representative in the September 2021 Appellate Brief, the Board has determined that the March 2021 and August 2021 VA medical opinions are inadequate for purposes of determining entitlement to service connection for a lumbar spine disability because the Veteran's lay statements were not considered. Dalton v. Nicholson, 21. Vet. App. 23 (2007). Under the AMA, a remand is not warranted unless there is evidence of a duty to assist error prior to the August 2021 determination on appeal. Prior to the August 2021 rating decision, the AOJ should have requested an addendum VA opinion specifically addressing the Veteran's lay statements concerning continuity of symptoms since discharge. Remand for a supplemental opinion is appropriate. The matter is therefore REMANDED for the following actions: 1. Obtain an addendum VA opinion from an appropriate clinician regarding whether the Veteran's current lumbar spine disability is at least as likely as not related to his in-service back injury. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the clinician. A new examination of the Veteran is only necessary if deemed so by the clinician. In the opinion, the clinician must address the Veteran's January 2021 and February 2021 lay statements concerning continuity of his symptoms and treatment history from initial in-service injury in 1958 until his first spine surgery in 1967. The clinician must provide a complete rationale for his or her opinion in the examination report. If the opinion cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.