Citation Nr: 21076320 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-49 572 DATE: December 23, 2021 REMANDED Entitlement to service connection for a back disability, to include spondylolisthesis with bilateral spondylosis and degenerative disc disease of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1974 to May 1976. In an August 2020 decision, the Board denied the Veteran's claims for entitlement to service connection for back and increased rating for left knee disabilities. The Veteran subsequently appealed the portion of the Board decision that denied service connection for a back disability, to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred when it failed to provide an adequate statement of reasons or bases for its findings, and when it failed to ensure that VA provided an adequate examination that complied with the directives of a December 2018 Board Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Accordingly, the matter has been vacated and remanded to the Board for actions consistent with the Court's order. The case is advanced on the docket pursuant to 38 C.F.R. § 20.902 (c). Entitlement to service connection for a back disability, to include spondylolisthesis with bilateral spondylosis and degenerative disc disease of the lumbosacral spine is remanded. The Veteran contends that his back disability is related to his military service. Following the Board's remand in December 2018, the Veteran was afforded a VA Back Conditions examination in June 2019. The examiner opined that the Veteran's back disability was less likely than not related to service. The examiner reasoned that the Veteran was not put on a profile for his 1975 episode of in-service back pain; worked in manual labor jobs for many years after separation; and was involved in at least one motor vehicle accident after service. See June 2019 C&P Examination. Service treatment records (STRs) show that the Veteran experienced more than the one episode that the June 2019 examiner described in the examination report. However, the examiner did not consider the April 1976, December 1976, and August 1974 STRs indicating complaints of back pain. The Board therefore finds the June 2019 VA examination report inadequate for reaching a determination in this case because the opinion is based on an incomplete/inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an incomplete or inaccurate factual premise are not probative). A remand is required for an adequate medical opinion that considers the entire factual record. Furthermore, the Veteran may be entitled to service connection if continuity of symptomatology is established. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). As such, the Board finds that a remand for a medical opinion as to the etiology of any currently diagnosed back disability, is necessary. 38 U.S.C. § 5103A (d). The matters are REMANDED for the following action: 1. With required assistance of the appellant, obtain any outstanding VA and/or private medical records and associated them with the claims file. 2. Following completion of the above, obtain a VA medical opinion to determine the nature and etiology of any back disability. This could be from the same examiner who conducted the June 2019 VA examination or another clinician of appropriate expertise. The claims file should be made available to the VA examiner for review and the examiner's report should reflect that the review was conducted. The Veteran need not be examined in person unless deemed necessary by the VA examiner. The examiner is requested to address the following inquires: (a) whether it is at least as likely as not (a 50 percent or greater probability) that the back disability was incurred in or is otherwise related to the Veteran's active military service. Importantly, the VA examiner must comment on the Veteran's reports of ongoing back pain since service and his reported symptoms and treatment in the 1970s and 1980s for back complaints. (b) whether the Veteran's back disability is least as likely as not (50 percent or greater probability) caused by his service-connected left knee disability. (c) whether the Veteran's back disability is at least as likely as not (50 percent or greater probability) aggravated by his service-connected left knee disability The examiner should provide a rationale for all opinions expressed. In formulating the medical opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. 3. After completing the above, and any other necessary development, the back disability claim on appeal must be readjudicated in light of all pertinent evidence and legal authority. If the benefit sought is not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC) and reasonable time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.