Citation Nr: 21077146 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-18 892 DATE: December 28, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. An October 1968 rating decision denied service connection for a back disability. The Veteran initiated an appeal of that decision, and a Statement of the Case was issued in January 1969; however, the Veteran did not perfect his appeal by filing a VA Form 9 and new and material evidence was not received within the remainder of the appeal period. 2. Evidence received more than one year since the final October 1968 rating decision, namely the October 2021 Board Hearing testimony, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The October 1968 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1967 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Entitlement to service connection for a back disability is remanded. Remand is warranted, as the September 2018 VA examiner's opinion is inadequate. Specifically, the examiner rendered a negative opinion primarily based on the lack of a documented back injury in the service treatment records (STRs), despite noting multiple STRs showing reports of back pain, without sufficient rationale or consideration of the Veteran's lay statements. Furthermore, the examiner's opinion did not address the Veteran's diagnosis of scoliosis or its etiology. Accordingly, an addendum opinion with a different examiner is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, the Board acknowledges the June 2019 statement from the Veteran's VA physician, Dr. M. However, that statement merely transcribes the Veteran's report that his back problems onset following an in-service lifting injury and thus does not constitute an adequate nexus statement. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere transcription of a claimant's statements regarding medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). Moreover, the Board is unable to award service connection for lumbar arthritis based on continuity of symptomatology, as more contemporaneous records contradict the Veteran's recent hearing testimony as to continuous back problems following an in-service injury. See, e.g., October 2003 VA treatment record (noting the Veteran's report of back pain of two days' duration and denial of any trauma to the back); thus an adequate nexus opinion is needed on remand. Any outstanding treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then obtain an addendum opinion from an examiner other than the September 2018 VA examiner, preferably an orthopedic physician, addressing the etiology of the Veteran's back disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner should address the following: (a) Is the Veteran's diagnosed scoliosis (see August 2018 VA treatment record and MRI report) a congenital defect or disease? (For VA purposes, a defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating.) (1) If scoliosis is identified as a congenital defect, please opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran incurred any superimposed disease or injury on such defect during service that resulted in additional lumbar spine disability. If so, please describe the resultant disability. (2) If scoliosis is identified as a congenital disease, is there clear and unmistakable evidence that it preexisted the Veteran's service? (3) If the answer to (2) is yes, then is there clear and unmistakable evidence that the preexisting scoliosis was not aggravated beyond its natural progression during service, to include as a result of long hours and prolonged standing therein and a conceded back injury during service from lifting heavy equipment? (4) If the answer to (2) is no, please opine as to whether it is at least as likely as not (50 percent probability or greater) that scoliosis is related to an in-service injury, event, or disease, to include as a result of the documented reports of back pain and aggravation due to long hours and prolonged standing therein (see August 1966 and March, May, June, September, October, and November 1967 STRs) and an undocumented in-service back injury (see below). (b) For diagnosed degenerative arthritis (see September 2018 VA examination report), please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability is related to an in-service injury, event, or disease, to include as a result of the documented reports of back pain and aggravation due to long hours and prolonged standing therein (see August 1966 and March, May, June, September, October, and November 1967 STRs) and an undocumented in-service back injury (see below). In addressing these questions, the examiner must: (1) discuss the October and November 1967 STRs noting the Veteran's reports of back pain since childhood and the May 1967 STR noting that the Veteran's was informed of scoliosis at age 19; and (2) assume as true the Veteran's report of an in-service back injury from lifting heavy equipment (see October 2021 Board Hearing Transcript at 3-4), and determine, based on the same, whether a nexus between the Veteran's back disability and service is "medically plausible." Failure to discuss the Veteran's lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.