Citation Nr: 21012592 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-21 584 DATE: March 4, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1983, and from August1984 to January 1990. In July 2017, a videoconference hearing was held before a Veterans Law Judge. A transcript of the hearing is in the claims file. In September 2018, the Board remanded the appeal for additional development. In a decision in September 2019, the Board denied the claim for service connection for a low back disorder. The Veteran appealed the denial of his claim to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s September 2019 decision and remanding the claim to the Board for readjudication consistent with the Joint Motion. Entitlement to service connection for a low back disorder is remanded. The Veteran seeks service connection for a back disability. Reportedly, she injured her back while lifting a box during her first enlistment in the fall of 1981 while working as an aircraft mechanic. She stated that she was treated with physical therapy inservice. The Board denied service connection for a low back disability in September 2019. In the October 2020 JMR, the parties agreed that the Board did not provide adequate statement of reasons and bases to support its denial of the Veteran’s claim for service connection for residuals of a back disorder because the April 2019 VA examination report relied upon in deciding the Veteran’s claim was inadequate for adjudication purposes. Specifically, the parties found that the VA examiner failed to fully consider and discuss the Veteran’s pertinent medical history, particularly the available service treatment records, including a November 1988 dental medical history form that indicated that the Veteran was taking Motrin for back problems. The parties further determined that the April 2019 VA examination report was inadequate because while the examiner noted the Veteran’s complaints of episodic low back pain that started in service, in rendering the negative nexus opinion the examiner relied on the lack of objective evidence of continuity of care for the Veteran’s back condition from her time of service, and did not consider the lay statements provided by Veteran as to continuity of her back symptoms. Accordingly, the parties determined that a remand is warranted for a new VA medical opinion that adequately addresses the Veteran’s lay statements as to continuity of symptomatology related to her back disability. The October 2020 JMR further found the Board did not address the credibility of the Veteran’s reports asserting that her back disability remained symptomatic since the alleged injury in service more than 30 years ago. Thus, the Court directed the Board to address the credibility of the Veteran’s lay statements regarding continuity of back symptomatology since service and the applicability of service connection for a chronic condition pursuant to §3.303(b). The Veteran is competent to report that she injured her back in service and there is no evidence of record to directly contradict her report in this regard. As the record reflects, most of the Veteran’s most of service treatment records are unavailable. The Veteran also competently reports back symptoms since service and there is no evidence of record to directly contradict her report. The Veteran is competent to report symptoms and aspects of a disability that are observable by her five lay senses, such as pain. Due to the missing service records, the Board has a heightened obligation to assist the Veteran in this case, explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Accordingly, the Veteran should be afforded a VA examination to determine the nature and etiology of her claimed low back disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to address the claim for service connection for a low back disability. The claims file must be thoroughly reviewed by the examiner in connection with the examination. All tests and studies deemed necessary should be conducted and all findings should be reported in detail. Following review of the claims file and an examination of the Veteran, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that any current back disability found on examination is related to the Veteran’s service, including an injury incurred during her first period of service from July 1979 to July 1983, or developed within one year of discharge from service in January 1990. Please explain why or why not. In formulating the opinion, the examiner is asked to comment on the available service treatment records, to specifically include the November 1988 dental medical history form that indicated that the Veteran was taking Motrin for back problems. The examiner is further advised that the separation examination from the second period of service appears unavailable and that a negative opinion based solely on the absence of in-service treatment records is not adequate. The examiner is also advised that regardless of documentation in the service treatment records, the Veteran is competent to report that she suffered a low back injury during service and has had continued symptoms since that time. If there is a medical basis to doubt the history reported by the Veteran the examiner should so state, and explain why. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.