Citation Nr: 21011760
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 14-39 538
DATE: March 2, 2021

REMANDED

Entitlement to service connection for a low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from February 1981 to October 1981 and August 2003 to July 2004.  He also served in the National Guard with a period of active duty for training from April to July 1996.

1. Entitlement to service connection for a low back disability is remanded.

In the May 2018 remand, the Board remanded the back issue for a VA examination based on the current diagnosis and complaints of back pain on a May 2004 post-deployment health assessment.  The May 2019 examiner diagnosed degenerative arthritis of the spine and lumbar spondylosis.  The examiner opined that the current back condition was less likely than not due to service because there was no evidence of treatment or radiologic evidence of any back condition during service or the year after separation.  It appears that the examiner rejected the evidence of the Veteran’s report of back pain during deployment based solely on the lack of contemporaneous treatment records.  The Board finds this problematic, particularly because the reported condition/symptoms took place during a period of deployment and the Veteran separated from service shortly thereafter.  Thus, the opinion is inadequate, and a new opinion should be obtained.  See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007).

Additionally, the Veteran continued to serve in the National Guard after returning from deployment from July 2004 to October 2004.  Medical records from this period do not appear to be in the claims file.  The Agency of Original Jurisdiction should make requests for those records from any appropriate repository, including those in the state(s) where the Veteran served.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. Request records from the Veteran’s periods of National Guard service, particularly from July to October 2004, from any appropriate repository, including those in the state(s) where he served.

3. Then, obtain a new medical opinion on the Veteran’s low back disability.  The expert should review the claims file and opine as to whether the Veteran’s current low back disability is at least as likely as not related to or concurrent with his service.  The expert should consider all relevant lay and medical records, including the Veteran’s report of having back pain during deployment recorded on the May 2004 health assessment and treatment records for back pain dating back to at least 2009.  

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All opinions must be supported by detailed rationale.  If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A.P. Armstrong

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.