Citation Nr: 21073684 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 03-06 318 DATE: December 9, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from July 1965 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter has been before the Board and the United States Court of Appeals for Veterans Claims (Court) numerous times since it was first considered by the Board in May 2008. Most recently, the Board denied the issue in January 2019. Based on a Joint Motion for Remand (JMR) the Court vacated the decision in April 2021, finding that a remand was warranted to address whether the June 2018 VA examiner adequately considered the Veteran's specific medical history. The issue is again before the Board for consideration. In October 2021, the Board sent the Veteran a letter informing him that the VLJ who had conducted a March 2005 Board hearing was no longer employed at the Board and therefore unable to issue a final decision on the appeal, and as a result, he had the right to an additional hearing before another VLJ. The Board received correspondence from the Veteran's representative that he did not wish to have an additional hearing. Therefore, the Board will consider the claim. Regarding the June 2018 VA medical opinion, the Court found that the examiner failed to discuss how the Veteran's specific medical history or risk factors applied to the research studies that he mentioned in his rationale. There were two studies mentioned. One study compared low back pain in twins where one twin had a memorable event of low back pain and the other did not. The other study identified smoking as a cause of accelerating aging. On remand, the examiner's rationale must include discussion of how these two studies are specifically applicable to the Veteran based on his medical history or how these risk factors apply in the instant case. The Court also found that the June 2018 VA examiner failed to address all the symptoms of pain identified in the buddy statements provided by the Veteran's pastor NB and his friend KM. For example, KM specifically recalled that at a Christmas gathering in 1968, the Veteran was "stretched out on the floor since the hard surface seemed to help" his back pain. Later that evening, KM had to assist the Veteran to medical services. KM relayed additional observations of the Veteran's pain, including tenderness to the touch, and shooting pains. However, none of this was discussed by the examiner. Accordingly, on remand these lay statements must be reviewed by the examiner and the symptoms of pain must be addressed. Additionally, the Board notes that the Veteran has raised an additional or alternate cause of in-service injury to his back since the January 2019 denial. In January 2020, the Veteran provided a statement reporting that he had been an 81mm mortar gunner while stationed in Vietnam, which required him to carry the mortar on his back. He described that this consisted of "a 35-pound tripod on my right shoulder and two 81mm rounds on my back, weighing 10 pounds each, totaling 55 pounds, along with my personal gear, all equating to a total of 125-130 or more pounds." He stated that carrying these heavy loads of equipment for his entire 11-month tour contributes to his daily back pain. Therefore, on remand, the examiner should also consider this lay statement in providing an opinion as to whether the Veteran is entitled to service connection for a low back disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the June 2018 medical opinion. If he is unavailable, the requested opinion should be obtained from another equally qualified professional (Orthopedic surgeon). A new examination is only required if deemed necessary by the examiner. The claims file must be reviewed in conjunction with providing the opinion. For each diagnosis of the low back identified in the June 2018 opinion, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) caused or aggravated by military service, to include the reported in-service fall and/or carrying heavy equipment as a part of his military occupational specialty (MOS) duties. In rendering the opinion, the examiner must review all lay statements provided by the Veteran as well as the buddy statements of record, specifically the statements from his pastor NB and his friend KM. All symptoms of pain mentioned in these statements must be considered. The examiner must also consider the two studies that were identified in the June 2018 medical opinion and discuss how they apply to the Veteran's specific medical history. A full and complete rationale for all opinions expressed is required. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.