Citation Nr: 21077016 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-17 947 DATE: December 28, 2021 REMANDED Entitlement to service connection for a lower back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1998 until August 1998, with additional service with the New York National Guard. This matter was most recently before the Board in June 2021 when it was remanded for further development. Despite the development on remand, another remand is required. Entitlement to service connection for a lower back condition is remanded. The Veteran claims that he suffered a back injury during a qualifying period of service with the New York National Guard in October 1999. He contends that he hurt his back while attaching a water tender to a Humvee during a drill weekend and that his current low back disability is related to that injury. The appeal was previously remanded to obtain service treatment and personnel records from the Veteran's National Guard service. The agency of original jurisdiction (AOJ) requested records from the Defense Finance and Accounting Service (DFAS), Defense Personnel Records Information Retrieval System (DPRIS), and the Adjutant General of the New York National Guard. Negative responses were received from DFAS and DPRIS. The New York National Guard did not respond to VA's request despite two attempts being made. The Veteran claims he was participating in a drill weekend at the time of October 1999 injury. The record includes an Individual Sick Slip dated October 16, 1999 detailing that the Veteran hurt his back while lifting a trailer; he complained of sudden back ache. The Unit Commander's section of the form said "yes" as to "IN LINE OF DUTY." In a sworn statement dated October 16, 1999, the Veteran outlined the details of the back injury. The claim is remanded to obtain a medical opinion. 38 C.F.R. § 3.159 (c)(4). The Veteran has reported continuing symptomatology since the 1999 injury. In a February 2021 opinion, Dr. D.J., DC, related the Veteran's current back disability to the reported injury in service. That opinion is not sufficient to decide the claim now because the opinion provider noted that x-rays show spondylolisthesis, which Dr. D.J. said is a congenital abnormality. Thus, it is unclear whether the Veteran suffered an injury to a pre-existing or congenital back condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his back disability. Copies of all pertinent records must be made available to the examiner for review. The examiner is asked to provide a response to the following: (a) Elicit from the Veteran a history of his back injury and symptomatology. (b) Identify all diagnosed back disabilities. (c) For each currently diagnosed back disability, the examiner should answer the following: (1) Is the diagnosis a (i) congenital "defect"; or (ii) a congenital "disease", or; (iii) an acquired disability? The examiner must specifically identify the evidence relied upon in making this determination. For VA purposes, "defects" are usually static in nature, whereas "diseases" are generally subject to episodic improvement or worsening. (d) If the diagnosis is a congenital DEFECT, is it at least as likely as not that a superimposed disease or injury occurred during service that resulted in an additional disability apart from the congenital defect? (e) If the diagnosis is a congenital DISEASE, was it at least as likely as not aggravated beyond its natural progression by the Veteran's military service? (f) If the diagnosis is an ACQUIRED DISABILITY, is it at least as likely as not that the back disability had its onset during or is otherwise related to the Veteran's military service? (Continued on the next page) A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.