Citation Nr: 21070637
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 14-36 280
DATE: November 24, 2021

REMANDED

Entitlement to service connection for a lumbar spine disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1983 to July 1987. 

This matter comes to the Board of Veterans' Appeals (Board) from a November 2013 rating decision which found that no new and material evidence had been submitted to reopen a previously denied claim of service connection for a lumbar spine disability.  

In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

In April 2018, the Board found that new and material evidence had been submitted to reopen a previously denied claim of service connection for a lumbar spine disability and then remanded the claim for further development.

In July 2020 and May 2021, the Board remanded the claim for further development. 

Entitlement to service connection for a lumbar spine disability is remanded.

The Board cannot make a fully-informed decision at this time because the July and August 2021 addendum opinions are inadequate. The examiner opined that it was less likely than not that the Veteran's lumbar spine disability was related to service because the Veteran was not diagnosed with a lumbosacral strain until 2011 and a medical records review did not establish the elements of chronicity. The examiner, however, improperly discounted the Veteran's lay statements based on the absence of medical evidence without providing a proper foundation for drawing negative inferences for the absence of evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). 

The matter is REMANDED for the following actions:

1. Obtain the Veteran's VA treatment records for the period from August 2021 to the present. 

2. Schedule the Veteran for a VA examination for his lumbar spine disability. 

The examiner must opine whether any of the Veteran's current lumbar spine conditions are at least as likely as not (1) related to service, to include the injury when lifting a heavy crate of M16s and/or the injury following a motor vehicle accident; (2) manifested within one year after discharge from service; or (3) were noted during service with continuity of the same symptomatology since service.

In rendering this opinion, the examiner must consider and discuss the February 1987 service treatment record identifying mild back strain post motor vehicle collision, as well as the Veteran's testimony at a June 2017 Board hearing that he still had pain in his low back after service; that he continued to have "pounding" pain in the area, with sharp pain down his right leg; and that the same problems are occurring now.

The examiner must review the claims file and provide a rationale for all opinions. The examiner is advised that a negative opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining whether the disability is related to service.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Ormson, 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.