Citation Nr: 21011268 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-45 606 DATE: March 1, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to January 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a low back disability. The Veteran filed a notice of disagreement (NOD) in August 2017 and a statement of the case (SOC) was issued in August 2017. He perfected a timely appeal in September 2017. In June 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserts entitlement to service connection for a low back disability, which he contends was incurred during his active military service. Specifically, he indicated that he hurt his back while carrying a tent by himself. See the Veteran’s NOD dated August 2017. With respect to current diagnosis, VA treatment records dated in June 2017 document the Veteran’s complaints of low back pain. Decreased flexion of the lumbar spine was noted in July 2017. VA treatment records dated in August 2017 indicated that X-ray of the low back showed “moderate L4-5 degenerative changes.” As to in-service injury, the Veteran’s service treatment records (STRs) do not document any complaints of or treatment for back pain. However, he is competent to report describe his injury and report observable symptoms such as low back pain. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). At the June 2020 Board hearing, the Veteran offered testimony concerning low back pain symptomatology on and off dating from his active duty service. The Veteran has not been afforded a VA examination with respect to claim of entitlement to service connection for a low back disability. As such, the Board finds that this matter must be remanded in order to afford the Veteran a VA examination as to the etiology of the claimed disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). At the June 2020 Board hearing, the Veteran reported that he recently underwent magnetic resonance imaging (MRI) of the lumbar spine at the VA medical center (VAMC) in Hampton, Virginia. He also reported that he received regular treatment from Dr. Waters; it is unclear whether Dr. Waters is a private or VA provider. Therefore, prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. The matter is REMANDED for the following action: 1. After obtaining any additional information and authorization necessary, undertake appropriate efforts to procure any records of outstanding private treatment (including the treatment records of Dr. Waters referenced above) and VA treatment dating from August 2017 (including the 2020 MRI report referenced above). All such available documents should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back disability. All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. (a). With respect to any diagnosed low back disability, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. (b). In providing the opinion and rationale, the examiner should consider the relevant evidence of record, particularly (1) the Veteran’s service treatment records; (2) the post-service VA treatment records documenting the Veteran’s report of low back pain in June 2017 and an August 2017 X-ray report showing moderate L4-5 degenerative changes; (3) the Veteran’s August 2017 report that he injured his back during active duty when carrying a tent by himself; and (4) the Veteran’s June 2020 hearing testimony regarding his symptoms. (c). 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 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? In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.