Citation Nr: 21074540
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 19-18 853A
DATE: December 15, 2021

REMANDED

Entitlement to service connection for a low back disorder, including degenerative disc disease of the lumbar spine, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1963 to March 1967. Most recently, the Board remanded the claim in August 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).  The case has since been returned to the Board for appellate review.

Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration.

Entitlement to service connection for a low back disorder is remanded.

The Board finds that the October 2021 VA medical opinion is inadequate as the examiner did not address the Veteran's lay contention that his current lower back disability was caused by his in-service back injury and that it has continued since service.  Rather, the examiner noted that there was no objective support of a hatch falling on the Veteran's back while neglecting to address the objective evidence noting back pain after a fall in the shower on active duty and his current back pain.  Also, the examiner noted that there was no evidence of treatment for a back condition for at least 47 years, yet he did not address the Veteran's contentions of ongoing back pain.  Further, the examiner opined that lay statements noting pain "cannot be considered both medical evidence and/or medical evidence of a nexus."  Once again, the Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Therefore, the AOJ should obtain additional medical opinion to address the Veteran's lay assertions.

The matters are REMANDED for the following action:

1. Obtain a VA addendum opinion pertaining to the etiology of the Veteran's low back disorder. All necessary tests should be conducted. The AOJ should ensure that the examiner has access to the Veteran's claims file, including a copy of this remand.

Based on a review of the record, the examiner should opine whether it is at least as likely as not that a current lower back disability had its clinical onset during service or is otherwise related to any incident of service, including a January 1967 fall that resulted in lower back pain.

In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of his lower back pain to be competent.  The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Costello, 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.