Citation Nr: 21070935 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-42 845A DATE: November 27, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1965 to August 1968, with subsequent National Guard service. A Board hearing was held in May 2021. A transcript is of record. In August 2021, the Board remanded the Veteran's claims of entitlement to service connection for a back disability and bilateral hearing loss to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Subsequently, the AOJ granted service connection for bilateral hearing loss. See October 2021 rating decision. This action constitutes a full grant of the benefits sought on appeal for that issue. Thus, the only issue that remains for appellate consideration is entitlement to service connection for a back disability. The Veteran attended an October 2021 VA examination regarding his back disability. The Veteran was diagnosed with degenerative arthritis and radiculopathy of the left lower extremity. See October 2021 VA examination report. In her opinion, the examiner opined that she could not provide an opinion without resorting to speculation. The examiner explained that the time from when the Veteran complained of a back condition in service to when the Veteran sustained a back injury on the job, approximately 28 years after separation, is too far removed; thus, she could not to state without speculation that the Veteran's current back disability is due to service. Id. Nevertheless, the examiner went on to provide a negative nexus opinion. The examiner's statements are contradictory in nature, and therefore cannot be the basis of an adequate examination. The Board has no way of knowing whether the examiner's opinion is one of speculation or a negative opinion based on her expertise and the medical evidence of record. The Court has held that in order to be adequate to satisfy the duty to assist, a medical examiner must reach clear conclusions, with supporting data and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, an examiner's statement that an opinion cannot be offered without resort to mere speculation is competent only if it is determined that it is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. See Jones v. Shinseki, 23 Vet. App. 382, 390 (U.S. 2010); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In this case, the Board finds that the examiner's determination does not meet that standard and it contains an unclear conclusion given the contradictory statements. Further, the examiner based her negative nexus opinion, in part, on the fact that there "is no evidence found in claims file of veteran being involved in parachute jumps while on active duty." See October 2021 VA examination report. However, the Veteran is deemed credible as to his testimony regarding parachute jumps in service. The other evidence of record does not discredit his lay statements. Based on the foregoing, the Board finds that remand is warranted to afford the Veteran with an adequate opinion regarding the etiology of his back disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his back disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's back disability. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's back disability was incurred in, or is otherwise related to, his time on active service, to include but not limited to parachute jumps therein? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.