Citation Nr: 21005613 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-35 495A DATE: February 2, 2021 REMANDED Entitlement to service connection for a low back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2019 Board videoconference hearing. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for a low back condition is remanded. This matter was last before the Board in August 2019, at which time it was remanded for a VA examination. The Board finds that there has not been substantial compliance with its remand directives. See, Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded a VA thoracolumbar spine examination in November 2019. A diagnosis of degenerative arthritis of the lumbar spine was noted. The Veteran reported that his pain began in 1985 when he was running food for battalions and was in charge of loading and unloading rations. The examiner opined that the Veteran's back condition was less likely than not incurred in or caused by his military service, noting that his low back pain in service was acute only, with no chronicity of care, further noting that the medical record has been silent for more than 25 years. It was further noted that degenerative arthritis is highly associated with increased age and progresses over time. In a September 15, 2020 addendum, the VA examiner acknowledged that the Veteran sought treatment for low back pain during service but stated that they were unable to state that this condition incurred in or was caused by service, again noting that his degenerative arthritis of the lumbar spine is age-related and was diagnosed 24 years after separation. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the VA examiner characterized the Veteran’s back pain in the service as acute and with no evidence of chronicity. The Board notes that the service treatment records tend to indicate that the Veteran had an ongoing problem with back pain, including indicating on his separation examination that he was still suffering from low back pain. Furthermore, the Veteran has repeatedly asserted that he has experienced low back pain ever since his release from active duty. Based on the above, the Board finds that the VA examiner relied entirely on a lack of post-service treatment records, ignored the Veteran’s report of ongoing back pain since the service and mischaracterized the nature of the Veteran’s low back pain complaints while in the service. As such, the examination and addendum opinion are not adequate, and this matter is remanded for a new VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s low back condition at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the Veteran’s low back condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner’s attention is invited to the August 8, 2012 private report of consultation and examination from Dr. P. Y. Yocon. The examiner’s attention is invited to the June 10, 2014 VA treatment record in which it was noted that the Veteran "has had long standing asymmetry in the foot and leg structures" and that "[i]t is undeterminable at this point in time when these structural asymmetries became evident". It was then noted that "it is more likely than not that the [Veteran's] asymmetries may have significant contribution with his long standing back and foot problems while he was in the military, and have continued since discharge." The examiner must address the Veteran’s assertion that he has had low back pain ever since active duty. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.