Citation Nr: 21073112 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-13 210 DATE: December 7, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1958 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a May 2019 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran requested a hearing before the Board. However, in an October 2020 correspondence, the Veteran withdrew the hearing request. Accordingly, the Board considers the request for a hearing to be withdrawn and will adjudicate the claims accordingly. 38 C.F.R. § 20.704. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a lumbar spine disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a lumbar spine disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran asserts that a currently diagnosed back disability began in service and continues to the present. The only notation of any back issue in the Veteran's service medical record is a January 1967 complaint of a sore back. At a June 2015 VA examination, after review of the claims file and in-person examination, the examiner stated that the Veteran has had a thoracolumbar spine condition but failed to state a diagnosis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner reasoned that careful review of the service medical records did not show a chronic low back problem. The examiner was unable to identify records that verified the Veteran's report of a fall with vertebral fracture in 1960. In addition, the service medical records did not show a chronic back problem or diagnosis at retirement in 1978. The Board finds the June 2015 VA examination to be incomplete. An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the June 2015 examiner relied on the absence of chronic symptoms or treatment in service for the negative opinion concerning the demonstrated disability, the Board finds the June 2015 VA examination to be incomplete. Further, the VA examiner does not appear to have considered the Veteran's contentions regarding the back condition, as that was not addressed in the rationale. The VA examiner appears to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there is any subjective evidence or lay evidence to support a theory that a back disability was related to his service, the Board finds the June 2015 VA examination report to be incomplete. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of any lumbar spine disability. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of a lumbar spine disability should be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a bilateral eye disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for an eye disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran asserts that a currently diagnosed eye or vision disability began in service and continues to the present. A June 2015 VA eye examination diagnosed dry eye syndrome, cataracts, and glaucoma suspect. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) caused by or related to an in-service treatment or event. The examiner explained that the current eye conditions did not begin for many years or decades after service and were unrelated to myopia and incident of foreign body (that was removed and resolved) while in service. The Board finds the June 2015 VA examination to be incomplete. An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the June 2015 examiner relied on the absence of chronic symptoms or treatment in service for the negative opinion concerning the demonstrated disability, the Board finds the June 2015 VA examination to be incomplete. Additionally, the examiner did not provide an adequate rationale to support the opinion. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). In essence, the examiner stated that the claimed disabilities were not related to service because they were not related to service. The Board finds that rationale to be inadequate as the examiner did not properly explain what led to the opinion and cited no supporting evidence. The examiner reviewed the medical evidence of record for the claimed disability but did not explain how the evidence related to the medical opinion that the claimed disability was not related to service. The examiner simply offered a conclusory statement as rationale for the opinion. As the June 2015 VA examiner did not provide an adequate rationale, the Board again finds the June 2015 VA examination to be incomplete. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of the Veteran's claimed eye/vision disability. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran's eye/vision disability should be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Then, schedule the Veteran for a VA spine examination, with a medical doctor who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any low back disability. The examiner must review the claims file, including this Remand and the Veteran's lay statements and should indicate review of the file in the report. The examiner should diagnose all low back disabilities found or shown in the record during the pendency of the claim. The examiner should reconcile the diagnosis with the previous evidence of record. For each back disability diagnosed, to include pain resulting in functional loss, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each back disability is etiologically related to active service or any event, disease, or injury during service, including whether any back disability (1) began during active service, (2) manifested as back arthritis within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should cite to any evidence to support a finding of back arthritis within one year following separation from service. The examiner should address the Veteran's lay statements regarding the claimed disabilities and their etiology and symptoms during and since service. The examiner must consider and discuss the lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. In writing the report, the examiner should refer to any service medical records indicating treatment in service for any of the claimed disabilities. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral eye disability. The examiner must review the claims file, including this Remand, and should note that review in the report. The examiner should address the lay statements of record regarding the claimed disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to diagnose any eye disabilities that occurred during the pendency of this appeal. If an eye disability is diagnosed, the examiner should provide the following opinions, based on the record: (a) Did an eye disability clearly and unmistakably (medically undebatable) preexist entrance to active service? The examiner should state what evidence supports that opinion and state what left and/or right eye disability clearly and unmistakably pre-existed entrance to service. (b) If an eye disability is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that a preexisting eye disability was not aggravated (worsened beyond the natural progress of the disease) during service. (c) The examiner should opine whether there was any superimposed injury in service that caused an increase in any preexisting eye disability. (d) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any visual loss or disability or cataract in the eye is related to service or any incident in service. (e) For any eye disability that is found to not clearly and unmistakably have preexisted entrance to active service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the eye disability is etiologically related to active service or any event, disease, or injury during service including whether any eye disability (1) began during active duty service; (2) was noted during service with continuity of the same symptomatology since service; (3) was caused by any service-connected disability, or treatment for any service-connected disability; (4) was aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability, or treatment for any service-connected disability. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. In writing the report, the examiner should refer to any service medical records indicating in-service treatment for any of the claimed eye or vision disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.