Citation Nr: 21013990 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-09 737 DATE: March 11, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected cervical spine posttraumatic arthritis, is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from December 1983 to December 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Seattle, Washington. In January 2018 the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). Lumbar spine Remand is required for an adequate VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Veteran received an October 2019 VA examination and opinion. The examiner opined the lumbar spine disorder was less likely than not proximately due to or the result of his service-connected neck disorder. The examiner noted there was no report of back injury other than the September 1986 service treatment record (STR). The examiner stated there was no complaint of back pain until a 2001 motor vehicle accident. The examiner stated there was no temporal relationship between the neck and back injuries and noted the Veteran did not have a generalized arthritic condition such as rheumatoid arthritis or spondylitis that would connect the two conditions. The examiner stated the back condition was due to several injuries between 2001 and present. The examiner stated the lumbar condition was less likely than not caused by or made worse by the neck condition. The examiner did not give a separate reasoning for aggravation. The examiner provided an identical rationale for aggravation. In a November 2019 opinion, the VA examiner opined the lumbar spine disorder was less likely than not incurred in or caused by service. The examiner stated they found no record or chronic or recurrent back problems beginning in-service to reflect the current condition. The examiner stated issues with the back did not appear until 2001. The examiner noted the September 1986 STR with coccyx pain but indicated it was without chronic complaint. The examiner opined the back condition was a result of several injuries between 2001 and present. The examiner stated a nexus for service connection could not be made due to missing elements of origin. The examiner stated a disability which began in service or was caused by some event in service must be considered “chronic” before a nexus for service connection can be established. The examiner stated the Veteran’s assertions of in-service jumps and back pain since service are not supported by the documentation provided whereas numerous records indicate likely post-discharge injury mechanisms as the cause of his current complaints. The Board finds the opinion is inadequate. First, the examiner uses an incorrect legal standard. Service connection does not require the injury in-service to be considered chronic. The examiner conflates two separate theories of entitlement. Which would make service connection more difficult and prejudice the Veteran. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The requirements for nexus do not indicate the disability must be chronic. Second, the examiner discounts the Veteran’s lay statements because there are no corroborating medical records. Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Veteran states his low back pain is related to jumps in service. The Veteran’s DD214 showed he is in receipt of a parachute badge and he completed ranger basic airborne training. The record indicates the Veteran’s statements are credible and should be considered when rendering an opinion. Accordingly, remand is required for an adequate opinion. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the lumbar spine from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disorder had onset in, or is otherwise related to, active service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disorder is caused or aggravated by the service-connected post traumatic arthritis cervical spine disorder. The examiner must address the following: 1) assertions of in-service jumps and back pain since service; 2) September 1986 fall with pain to the tail bone and lower back contained in the Veteran’s STRs; and 3) lower back study note the February 2021 statement. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate 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.