Citation Nr: 21011178 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-21 197 DATE: March 1, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1968 to September 1994. This case comes on appeal of a June 2013 rating decision. This matter was before the Board in July 2018 and February 2020 and was remanded for further development. Unfortunately, as is discussed below, additional remand is necessary to ensure the Veteran is afforded VA’s duty to assist in his claim. Entitlement to service connection for a low back disorder is remanded. First, the Board observes that in a March 2019 VA examination, the Veteran reported that he was in receipt of Social Security Administration (SSA) disability payments for his low back condition. Records of the Veteran’s SSA disability are not associated with the claims file. As those records may contain information regarding the continuity of the Veteran’s degenerative arthritis symptoms, they are relevant to the claim and should be obtained on remand. Moreover, whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the Veteran has undergone two VA examinations, neither of which have yielded medical opinions supported by adequate rationale. In that regard, the Board first notes that the Veteran’s service treatment records have been determined to be unavailable. When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim of service connection, however, it increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran underwent VA examinations in March 2019 and December 2020. In the March 2019 examination, the examiner provided a negative nexus opinion based primarily on the lack of records of in-service treatment for a back condition. In February 2020, the Board remanded the claim to afford the Veteran a new examination, noting that service treatment records were not available. At the December 2020 examination, the examiner provided diagnoses of degenerative arthritis and spinal stenosis. The examiner noted the Veteran’s description of his medical history. Specifically, the Veteran described an onset of low back pain around 1982, when he was doing a lot of heavy lifting. The Veteran described his complaints of back pain to medical providers who told him to take Ibuprofen. According to the Veteran, pain would get worse after working and was relieved with rest. Then, around 1988, he noticed increased frequency and intensity of low back pain, with symptoms ultimately including radicular pain into both lower extremities. The examiner opined that it was less likely than not that the Veteran’s back conditions were caused by or incurred in service. By way of rationale, the examiner first stated that there was no back condition during service, that there was no evidence of chronicity of care during service, and that symptoms were subjective only. The examiner then provided medical textbook information regarding degenerative facet arthropathy and scoliosis. The examiner stated that it was more likely than not that the Veteran’s scoliosis and syringomyelia was likely hereditary and that the degeneration the Veteran has is due to natural wear and tear due to aging. The examiner stated that on the Veteran’s May 1994 retirement examination, which is of record, there was no documentation regarding a back condition and that documentation for a back condition does not start until 2010. The Board wishes to make clear that the Veteran’s service treatment records are not associated with the claims file. Therefore, reliance on the lack of objective evidence of in-service treatment for a back condition is an insufficient basis for a negative nexus opinion. Even in the absence of contemporaneous records, the Veteran is competent to describe his medical symptoms as he experienced them as well as any treatment he was given. Further, adequate medical opinions must be accompanied by medical rationale. Merely listing evidence that is in the record does not constitute medical rationale. An examiner must explain how such evidence informs the conclusion reached. Here, the examiners have not provided adequate rationale for their conclusions. Additionally, the December 2020 examiner addressed low back diagnoses of scoliosis and syringomyelia that were not listed on the report of examination. The examiner stated that these conditions were likely hereditary, but provided no explanation for that conclusion. The Veteran is presumed sound upon entry into service for any condition not noted upon entry. Here, the Veteran’s May 1968 enlistment examination is of record and no back conditions are noted on that examination. Thus, the Veteran should be considered to be sound upon entry regarding scoliosis and syringomyelia. Moreover, the Board notes that the Veteran’s November 2010 evaluation for back pain includes an assessment of L2-5 degenerative scoliosis. It is unclear if the examiner considered this in the discussion of scoliosis. The matters are REMANDED for the following action: 1. Obtain the Veteran’s records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain a medical opinion addressing the nature and etiology of the Veteran’s low back disabilities. The opinion provider should review the entire claims file, to include a copy of this Remand. The reviewing clinician should identify all current disabilities of the low back. Then, with respect to each such diagnosed disability, the clinician should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the reviewing clinician is reminded that VA has found that the Veteran’s service treatment records are unavailable. As such, the lack of objective evidence of in-service treatment or complaints should not be the sole basis for a negative nexus opinion. The Veteran is competent to describe his symptoms and medical treatment during the course of service. The clinician should therefore consider the available medical evidence of record as well as the Veteran’s lay statements in rendering an opinion. If there is a medical reason to call into question the credibility of the Veteran’s report of history, this should be explained. Additionally, the examiner should note that the Veteran is considered sound upon entry for any conditions not noted on his entrance examination. All opinions should be supported by a medical explanation or rationale. If in the reviewing clinician’s opinion an answer to the question above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 3. Then, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.