Citation Nr: 21074444 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-43 595 DATE: December 15, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1983. In February 2019 and August 2021, this appeal was remanded for further development. Unfortunately, for the reasons discussed below the Board finds that another remand is warranted. At the onset, the record establishes that the Veteran has been diagnosed with a lumbosacral strain and a right ankle strain. See October 2021 VA examination reports for back conditions and ankle conditions. In the August 2021 remand, the Board noted that the Veteran contends that during his service, he injured his back and right ankle when he was lifting a generator which slipped and fell on his back and right ankle. Given such, the Board requested a medical opinion to ascertain whether the Veteran's back and right ankle disabilities were related to service, to include as due to the Veteran's statements with respect to his in-service injury. In a subsequent October 2021 VA medical opinion, the VA examiner opined that the Veteran's back and right ankle disabilities were less likely than not related to the Veteran's service. The Board notes that while the VA examiner acknowledged the Veteran's statements that during his service a generator fell on his back and right ankle, the VA examiner did not discuss or consider the Veteran's statements in any meaningful way, as specifically requested by the Board's August 2021 remand. In Miller, the Court held that the duty to assist requires an examiner to "address the veteran's lay statements to provide the Board with an adequate opinion," in part because "medical opinions can inform credibility findings. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Applying Miller, the Court explained in Smith, that because "medical opinions can inform credibility findings, the duty to assist may require the Board to obtain a medical examination before assessing the credibility of lay evidence." See Smith v. Wilkie, 32 Vet. App. 332 (2020). Given such, applying the Court's rulings in Miller and Smith, the Board finds that without consideration of the Veteran's lay statements, the October 2021 VA medical opinion of record, is inadequate. Moreover, as the August 2021 Board remand specifically requested consideration of the Veteran's lay statement, a remand is warranted. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding VA and non-VA medical treatment records relevant to the Veteran's claims for low back and right ankle disabilities. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above to the extent possible, request an addendum opinion from a qualified medical professional to ascertain the nature and etiology of the Veteran's low back and right ankle disabilities. After reviewing the entire record, to include the Veteran's lay statements, the examiner is requested to address the following: a) Whether the Veteran's low back disability, to include lumbosacral strain, is at least as likely as not (probability of approximately 50 percent) the result of a disease or injury incurred in or aggravated by service. b) Whether the Veteran's right ankle disability, to include right ankle strain, is at least as likely as not (probability of approximately 50 percent) the result of a disease or injury incurred in or aggravated by service. The VA examiner MUST discuss the Veteran's lay statements, to include the following: The Veteran's statements that in 1979, a heavy generator fell on his back and right ankle. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of low back and right ankle pain. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for symptoms related to the disability in the Veteran's available service treatment records and post-service records cannot, standing alone, serve as the basis for a negative opinion. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.