Citation Nr: 21005510 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-02 331 DATE: February 1, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1995 to July 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2017, and the Board remanded the appeal later that month and April 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). The Veteran presented for a VA examination in October 2020 as part of the Board remand to address the Veteran’s scoliosis, whether or not he had a pre-existing back injury, and direct service connection for his back injury. When the October 2020 VA examiner was directed to provide an opinion regarding the Veteran’s scoliosis and if it was present or not since 2011, the examiner opined that there was no evidence as to scoliosis on an x-ray or an examination. She reasoned that it is likely that the “scoliosis” found on the October 2015 examination and cited again in 2016 was due to an abnormal positioning of the spine to accommodate for back pain, as opposed to the medical diagnosis of scoliosis. The examiner emphasized that the there was no x-ray evidence of scoliosis found. The Board also notes that the November 2017 VA examiner denied that the Veteran had a diagnosis of scoliosis as well. As such, the Board finds that a preponderance of the evidence demonstrates that the Veteran has never had scoliosis, and thus the Board need not address whether its origin is congenital. As to the question of a pre-existing injury, a Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38C.F.R. §3.304(b). The April 2020 Board remand noted that in the Veteran’s entrance report of medical history in February 1995, prior to his period of active service, the Veteran did not endorse a history of recurrent back pain, and his report of medical examination was normal. See February 1995 STRs; April 2020 Board Remand. The Board also found the November 2017 VA examination inadequate regarding the question of clear and unmistakable evidence of a pre-existing injury prior to service and remanded the claim for an adequate opinion due to the same. Hence, in October 2020, the Veteran presented for another VA examination for the examiner to opine on whether or not there was clear and unmistakable evidence that the Veteran’s back disability existed prior to service. The Board is unable to locate in the examination where the examiner directly and explicitly answered this question; and on that basis, the Board finds the examination inadequate. The Board notes that with the response the examiner did provide as tangential to the question, she essentially opined that the Veteran more likely than not had chronic, intermittent back pain prior to active service, which is the incorrect legal standard to apply, as the opinion should be based on the higher legal standard of clear and unmistakable evidence of a disability. As such, and affording the Veteran the benefit of the doubt, the Board finds that the presumption of soundness is not rebutted in this case, as no examiner has opined with the requisite degree of certainty or supported such a finding. Based on the aforementioned inadequacies of the other aspects of the examination, the Board finds that, without reaching its merits, an addendum opinion that adequately addresses direct service connection with application of the presumption of soundness is needed on remand. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). In this regard, as noted in the prior remand, the favorable opinion from Dr. L.P. is inadequate for failure to address the impact, if any, of the Veteran’s post-service motor vehicle accidents. The matters are REMANDED for the following action: Obtain an addendum opinion addressing the etiology of the Veteran’s diagnosed lumbosacral strain as well as any other back disability from an examiner other than the November 2017 and October 2020 VA examiners, preferably a physician. 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, including the lay statements provided by the Veteran, the examiner should address the following: State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability had its onset in service, or is otherwise related to service, to include as a result of documented treatment therein. Please assume the Veteran’s lumbar spine was sound at service entrance, and discuss the Veteran’s testimony as to an in-service injury during basic training when lifting another solider that caused him to fall down in excruciating pain, the June 1995 STR, and the impact, if any, of the Veteran’s post-service 1997 and 2015 motor vehicle accidents. A complete rationale shall be given for all opinions and conclusions expressed. In the event that the VA examiner is unable to provide a medical opinion, he or she must provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. 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.