Citation Nr: 21073938 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-48 287 DATE: December 13, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The Board remanded the case for further development in September 2019. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. The Veteran was afforded a VA examination in January 2020 during which he denied having a back condition prior his military service. He explained that he had reported having back problems hoping that he would be rejected by the military. The examiner noted that there were other service treatment records documenting a history of back problems prior to service. He also observed that a January 1969 separation examination report indicated that the Veteran had moderate low back pain with the last episode having occurred a year earlier with no sequelae. In addition, in August 1982 and July 1987, the Veteran denied having a medical history of recurrent back pain. Thus, the examiner concluded that it is less likely as not that the Veteran's current back pain is secondary to his time spent in the military or was aggravated by his time spent in the military. Nevertheless, in the September 2019 remand, the Board noted that the Veteran reported a medical history of recurrent back pain during an April 1966 enlistment examination, but that a clinical evaluation of his spine was found to be normal at that time. History provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38C.F.R. §§3.304 (b)(1); Paulson v. Brown, 7Vet. App.466; Crowe v. Brown, 7Vet. App.238, 246 (1995). Thus, the presumption of soundness applies, and clear and unmistakable evidence would be needed to rebut that presumption. However, the January 2020 VA examiner did not provide an opinion as to whether a back disorder clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. Instead, he appears to have based his opinion on the premise that a back disorder was already shown to have clearly and unmistakably existed service and used the incorrect legal standard in addressing aggravation, as he used the wording for the preponderance of evidence standard. He also used the term "secondary," whereas the issue is direct service connection. Therefore, the Board finds that an additional VA medical opinion is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that, where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who had provided treatment to the Veteran for a low back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion to determine the etiology of the Veteran's low back disorder. A physical examination is only needed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Veteran reported a medical history of recurrent back pain during an April 1966 enlistment examination; however, a clinical evaluation of his spine was found to be normal. Thus, the presumption of soundness applies. The examiner should opine as to whether the Veteran's current low back disorder clearly and unmistakably preexisted his military service. (The term "clear and unmistakable" means that the evidence is undebatable). If so, he or she should state whether there was an increase in the severity of the preexisting disorder during the period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that the disorder did not clearly and unmistakably preexist the Veteran's service, he or she should provide an opinion as to whether it is at least as likely as not that the Veteran's current low back disorder manifested in service or is otherwise causally or etiologically related to his military service, including any symptomatology or injury therein. In rendering this opinion, the examiner should specifically consider the service treatment records noting a history of back problems prior to service, a September 2014 private treatment record noting that the Veteran has been treated for the progression of injuries sustained from service starting in 1966, the Veteran's September 2016 statement in which he reported not having a back injury prior to service and that his first episodes of chronic back pain occurred in November 1966 while working on a large vehicle in service, the Veteran's June 2019 hearing testimony, and March 2016, June 2017, June 2018, and June 2019 VA treatment records noting a diagnosis of chronic lower back pain in 1967. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it). A clear rationale for the opinion would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.