Citation Nr: 21010175 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-47 494 DATE: February 24, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1972 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By way of background, the appeal was previously before the Board most recently in September 2020, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) in order to obtain a new medical opinion. For the reasons discussed below, the Board finds that there has not been substantial compliance with the directives of its September 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a lumbar spine disability is remanded. Regrettably, the Board finds that another remand is warranted before the Veteran’s appeal for entitlement to service connection for a lumbar spine disability can be properly adjudicated on its merits. The Veteran asserts that his lumbar spine disability began in service and that he has experienced a continuity of symptomatology since service. Specifically, the Veteran contends that his military occupational specialty (MOS) of Aviation Ordinance Mechanic required him to lift and transport heavy objects such as parts of plane engines and that such practice caused back problems that have worsened over time. Indeed, the Veteran’s service treatment records (STRs) indicate that the Veteran complained of, and sought treatment for, lower back conditions including muscle strain. See, e.g., STRs dated January 9, 1976. However, neither nexus opinion currently of record is supported by a rationale that adequately addresses both the Veteran’s in-service treatment of back pain and his lay assertions concerning continuity of symptomatology. Following an October 2009 VA examination, a clinician opined that the Veteran’s back disorder, then diagnosed as chronic lumbar strain, was less likely than not caused by or due to the Veteran’s active duty military service. See VA examination dated October 28, 2009. In so finding, the clinician reasoned that the Veteran’s chronic lower back pain began many years after service and that the Veteran had no history of a back injury or treatment during service. In light of the complaints of back pain documented in the Veteran’s STRs, the clinician’s rationale was based on an inaccurate factual premise. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal v. Brown, 5 Vet. App. 458 (1993), that a medical opinion based on an inaccurate factual premise is of no probative value). Consistent with the directives of the Board’s September 2020 remand, the AOJ procured another nexus opinion. In November 2020, a VA physician opined that the Veteran’s lumbar spine diagnosis of degenerative disc disease was less likely than not incurred during or caused by the Veteran’s military service. The physician noted that the Veteran’s “degenerative disease of lumbosacral spine” was diagnosed in 2002, many years after the Veteran separated from active duty service. Regarding the in-service treatment for back problems, the physician remarked that the May 1975 surgical drainage of a pilonidal abscess was not related to the Veteran’s lumbar spine; and he further explained that the acute lumbar strain the Veteran experienced in 1976 was “treated and resolved,” observing that the separation examination was normal. However, the opinion did not adequately address the Veteran’s statements that his lumbar spine disorder had its onset during service and has gradually worsened since that time. Finally, the physician noted that he could not locate any documented evidence of a serious injury or chronic condition of the lower back during service or in the civilian medical records immediately following the Veteran’s military separation. An absence of medical records cannot form the basis of a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing, essentially, that an examination was inadequate where the examiner relied on the absence of medical records to provide a negative opinion). Therefore, the November 2020 medical opinion is not adequate for adjudicative purposes. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its September 2020 remand directives. Therefore, another remand is required in order to procure a medical opinion supported by an adequate rationale. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for review and for the opinions sought regarding the Veteran’s claim for service connection for a lumbar spine disability. ONLY IF another examination is deemed necessary to answer the questions below, one should be scheduled. The clinician is asked to address the following: (a.) Please identify all current lumbar spine disabilities and any lumbar spine disabilities present at any time during the period on appeal. If any previously diagnosed disorder is no longer present, the clinician must provide an explanation. (b.) For each diagnosed lumbar spine disability, is it at least as likely as not (50 percent probability or greater) that the disability was incurred in, or is otherwise etiologically related to, the Veteran’s active duty military service, to include lifting and transporting heavy objects? It should be noted that the phrase “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided and that, in the clinician’s opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The clinician’s attention is directed to the episodes of lower back pain the Veteran complained of during service, as demonstrated by May 1975 and January 1976 service treatment records. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptomology. The clinician is specifically asked to address the Veteran’s assertion that his back problems began on active duty service and have gradually worsened over time and whether the evidence of record demonstrates that any lumbar spine diagnoses may be etiologically related to the physical demands required of the Veteran’s active duty service. The clinician is reminded that an absence of prior medical documentation of symptoms or treatment is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and an in-service event or injury. (Continued on the next page)   A clear rationale for all opinions expressed would be helpful; and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.