Citation Nr: 21015491 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-12 056 DATE: March 17, 2021 REMANDED 1. Entitlement to service connection for a lumbar spine disorder is remanded. 2. Entitlement to service connection for a neurologic abnormality of the left lower extremity (left leg disorder), to include as secondary to a lumbar spine disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to June 1975, and from October 1976 to March 1978. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a March 2019 hearing. These issues were previously before the Board in August 2019 and June 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Additionally, the record reflects the Veteran’s complete service treatment records (STRs) for the August 1972 to June 1975 period of service are unavailable. In light of the missing STRs, the Board has a heightened obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt doctrine. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There is not, however, a lower legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service in these particular cases). The Board’s analysis of the Veteran’s claim has been undertaken with the heightened duty in mind. 1. Entitlement to service connection for a lumbar spine disorder is remanded. Remand is required for an addendum VA medical opinion, and substantial compliance with the June 2020 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. 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). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when 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). The RO obtained an addendum VA medical opinion in November 2020 where the examiner provided a negative nexus opinion. The examiner explained that the Veteran’s chronic back pain pattern was caused by years and years of working in highly physical capacities, such as is likely the cause of somewhat diffuse degenerative arthritis that is confirmed in the medical record. The examiner stated that the buddy statements provided by his coworkers at the foundry who observed back problems do not lend support to the premise that the Veteran’s back pain was caused by his military service, but rather due to his work at the foundry. The examiner also opined that that both of his coworkers also endorsed back problems, which very likely stemmed from their physical duties at the foundry as well. The Board notes, however, that neither of his coworkers stated that their back pain is due to the work at the foundry, rather they asserted that the Veteran has had back problems as long as they have known him, and having back pain of their own, they were able to recognize his symptoms. Neither of his coworkers submitted their own medical histories for the examiner to base such a medical opinion on. The examiner failed to provide any supporting rationale to explain how the fact that both coworkers also experience back pain suggests that the etiological origin of their own back pain is also due to their work at the foundry. The examiner also failed to address the Veteran’s wife’s statement that she has known the Veteran since 1976, and that he has experienced back pain for as long as she has known him. The examiner also failed to address the Veteran’s wife’s testimony and the March 2019 Board hearing testimony that as early as 1976, his back would go out and he would go to the doctor for the pain. The June 2020 Board remand directives instructed the examiner to address this testimony. The examiner opined that medical records support that the Veteran’s back conditions, to include lumbar spinal stenosis, spinal fusion, scoliosis, degenerative joint disease (DJD), degenerative disc disease (DDD), radiculopathy, and spondylosis are less likely than not due to or caused by active military service. The examiner based this opinion on the fact that there were only 3 service treatment record (STR) entries for one episode of back pain that spanned only 5 days during service. The examiner also noted that the separation examination is silent for any back concerns expressed by the Veteran. The examiner opined that medical records support that the years of post-military work in occupations involving regular vigorous physical exertion associated with a pattern of recurrent acute lumbar strains and chronic excess wear and tear on the lumbar spine ultimately caused the chronic back condition. However, the June 2020 Board remand reminded the examiner that the bulk of the Veteran’s STRs from his first period of active duty are missing due to no fault of his own. Instead, the examiner relied on the fact that the available records contain few mentions of lower back pain to opine that the lower back pain is not due to active duty service. The examiner also failed to address the Veteran’s March 2015 statement indicating that he refrained from consistent treatment during service due to the optics of frequently visiting sick bay, and instead self-medicated with alcohol and pot. He also explained in this statement that at separation, he was naïve and simply signed the paperwork to expedite his release. The Veteran again asserted at his March 2019 Board hearing that it was frowned upon to keep going back to sick bay for aches and pains by senior petty officers and other shipmates, and that he self-medicated with alcohol and pot. The June 2020 Board remand also instructed the examiner to address various records. Regarding the Veteran’s lay statements about crawling into small spaces to work all day during service, the examiner explained that the mere activity of crawling into small spaces does not provide supporting evidence for causation of a chronic back condition incurred by those specific activities performed while in the military. The examiner also again noted that the relative few mentions of back pain in his STRs provides compelling evidence that these activities did not result in a permanent or chronic back condition; however, again, the June 2020 Board remand reminded the examiner that the bulk of the Veteran’s STRs from his first period of active duty service are unavailable due to no fault of his own. Regarding the Veteran’s lay statements about continuous symptoms, the examiner explained that medical records only support recurrent intermittent episodes of acute lumbar strain post-service due to excessive wear and tear while working in highly physically demanding occupations. The examiner also stated that the recurrent episodes of acute lumbar strain and chronic excess wear and tear ultimately caused the chronic back conditions. The examiner was also instructed to address 1986 and 1999 private treatment records (PTRs) regarding treatment for back pain. As for the 1986 PTRs, the examiner explained that the medical records are silent for back pain treatment between 1980 and 1986, and from 1986 until 1996. However, the examiner failed to address the Veteran’s June 2019 Board hearing testimony that he received treatment in North Dakota from 1978 to 1984, and from various doctors in Wisconsin after 1984, but that he was unable to retrieve any of those records, to include those destroyed in a fire or a flood. As for the 1999 PTRs, the examiner noted that the Veteran had denied knowledge of any trauma to the spine, and that the low back pain had only been recurrent for 3 weeks. The examiner was also asked to address the May 2013 and February 2020 medical opinions, which the examiner stated that the concurred with those opinions based on the relative lack of STR entries regarding back pain complaints, and the Veteran’s career in physically demanding labor following service. For the reasons stated above, remand is required for an addendum VA medical opinion. Entitlement to service connection for a left leg disorder, to include as secondary to a lumbar spine disorder, is remanded. Remand is also required for the issue of entitlement to service connection for a left leg disorder, as it is inextricably intertwined with the Veteran’s claim for entitlement to service connection for a lumbar spine disorder. The adjudication of the latter issue may affect the Veteran’s entitlement to the former. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the lumbar spine disorder from a VA examiner, different from the examiner that provided the February and November 2020 VA medical opinions if possible. 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. (a) First, for each diagnosed lumbar spine disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active service. (b) If, and only if, a positive nexus is established, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left leg disorder is proximately due to or a result of his lumbar spine disorder. (c) The examiner should read the August 2019, June 2020, and March 2021 Board remands. (d) The examiner must address the following: 1) the Veteran’s lay statements regarding his lumbar spine injury after crawling into small spaces to work all day during service; 2) the Veteran’s wife’s Board hearing testimony that after meeting him in 1976, the Veteran’s back would go out and he would have to go to the doctor for pain; 3) the Veteran’s lay statements regarding continuous symptoms; 4) the March 2015 statement; 5) the buddy statements regarding the Veteran’s back pain; 6) August 1986 private medical record noting a history of back problems; 7) a July 1999 private treatment record noting chronic back pain and the Veteran denied knowledge of any trauma to the spine; and 8) the May 2013, and the February and November 2020 VA medical opinions. (e) The examiner is reminded that the Veteran’s complete STRs for the August 1972 to June 1975 period of service are unavailable. (f) The examiner is instructed to disregard the conclusion of the February 2020 examiner regarding alcohol related injuries. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.