Citation Nr: 21012038 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-37 607 DATE: March 3, 2021 REMANDED Entitlement to service connection for low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to December 1971. This appeal comes before the Board of Veterans’ Appeal (Board) from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In December 2019, the Board remanded the Veteran’s claim. Entitlement to service connection for low back disability. To ensure that VA has met its duty to assist, remand is again necessary. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran contends that he hurt his back lifting a GE driver weighing 200 pounds that supplies power to the aircraft. See Hearing Transcript (September 2019). He states he reported the injury only after service, when he went to a VA facility for treatment for his back a year after separation. Id. As previously noted, the presumption of soundness is for application, because a review of the Veteran’s April 1968 pre-induction examination reflects no abnormalities of the back. To rebut this presumption, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). The Veteran’s April 1968 Report of Medical History conducted prior to the Veteran’s enlistment notes “back pain sometimes.” An October 1968 service treatment record (STR) shows that the Veteran hurt his back while playing football. Another October 1968 STR shows a two-day history of low back pain associated with acute upper respiratory infection. A November 1971 separation examination reflects normal clinical evaluation of the spine and that the Veteran reported a history of recurrent back pain twice a year for several years. A November 1995 private treatment record shows that the Veteran had a previous surgery for a work-related injury to his L4-5 disc 10 to 12 years earlier, and that he was being seen for a new disc problem unrelated to the work associated disc. See Medical Treatment Record - Non-Government Facility (November 210). Records of earlier treatment, which may have been part of the Veteran’s Social Security Administration record, have not been associated with the Veteran’s file and were destroyed. See Medical Treatment Records - Furnished by SSA (March 2015). Three VA opinions have been obtained for the Veteran’s low back disability, none of which have provided adequate findings. A January 2016 VA examination conducted, without a review of the Veteran’s claims file, reflects a diagnosis of degenerative arthritis and reports of history of low back pain in the military that has continued since service. The VA examiner opined that the Veteran’s claimed condition “was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness.” The Board previously noted that this opinion is premised on incomplete facts, because it does not recognize a notation of recurrent back pain at the time of enlistment and the same notation at the time of separation. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). An April 2016 VA addendum opinion reflects that, based on “enlistment physical” notation of recurrent back pain, that “the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness.” This opinion is based on an inaccurate premise that the enlistment examination, as opposed to report of medical history, noted recurrent back pain. See Reonal, supra; see also Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). While the Veteran has undergone a VA examination after the December 2019 remand, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). First, the January 2020 examination does not provide the answers to the questions posed by the Board’s December 2019 remand. See Stegall, supra. The Board requested an answer as to the etiology of the Veteran’s low back disability, which the examination and opinion do not provide. The opinion also does not answer the questions of whether the Veteran’s low back disability (1) clearly and unmistakably preexisted the Veteran’s service, and (2) if low back disability is found to clearly and unmistakably preexist service, whether it was clearly and unmistakably not aggravated by service. Second, the January 2020 VA medical opinion relies on an inaccurate premise and misstates facts. See Reonal, supra. While the examiner noted the Veteran’s statements that he had no pre-existing back condition, he indicated his inability to reconcile the records showing a back injury in 1968 playing football and the Veteran’s reports of no pre-existing back condition. An October 1966 STRs, as noted above, clearly show that the Veteran presented for complaints that his back “hurts” and that he noted playing football—this incident took place during service, not prior to enlistment. STRs also contain additional annotations of back problems in service, which the examiner did not address. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The January 2020 VA opinion highlights its misunderstanding of the questions at issue and provides no requested answers. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the Present. 2. Thereafter, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s low back disability. The claims file along with a copy of this remand should be reviewed. Detail the Veteran’s reported symptoms’ onset, progression and severity. The clinician should opine on the following: (a.) Whether a back disability clearly and unmistakably preexisted service and, if so, whether it was clearly and unmistakably not aggravated by service. Consider the Veteran’s (1) documented history and assertions, and (2) the in-service annotations of low back pain. (b.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the October 1968 documented complaint of back injury while playing football and subsequent reports of back pain. In that regard, the examiner should address a work-related injury in around 1985, records of which are unavailable. The examiner should review the file and provide a complete rationale. Provide a rationale to support the opinion(s). The clinician is not required to accept the Veteran's theory that his lifting a GE driver weighing 200 pounds caused his current low back disability if this is incongruous with the record or other implausible based on history, findings, or accepted medical principle; however, the clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support any negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.