Citation Nr: 21016203 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-05 902 DATE: March 22, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1979 to April 1986. This matter is before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This case was previously before the Board on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. In a November 2019 decision, the Board denied entitlement to service connection for a lumbar spine disability. The Veteran appealed the Board’s decision to the Court. In October 2020, the Court issued an Order that vacated the Board’s November 2019 decision and remanded the matter for readjudication consistent with instructions outlined by the parties in a Joint Motion for Remand (JMR). Unfortunately, the claim must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this matter so that the Veteran is afforded every possible consideration. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran seeks entitlement to service connection for a lumbar spine disability, currently diagnosed as lumbar spondylosis with degenerative disc disease, which he contends was incurred in or caused by military service. At the August 2019 Board hearing, the Veteran testified that he injured his lower back during service while performing his duties as a cook onboard a Navy ship, where he was routinely required to lift and carry heavy boxes of frozen food. He described one incident in which, while carrying a box of food from the freezer, the ship rolled, causing him to lose his balance and strike his back on a case of meat that was behind him. He maintains that he has continued to experience low back pain ever since this in-service injury. In the November 2019 decision, the Board relied on a May 2014 VA examination and medical opinion, which provided a negative nexus opinion, to deny the Veteran’s claim for service connection. In this regard, although the Veteran reported during the examination that he injured his back in service “lifting a heavy pot,” the negative VA opinion was based solely on a lack of documented complaint or treatment for a lumbar spine condition during, or approximate to, active duty service. In the October 2020 JMR, the parties agreed that the Board erred in its November 2019 decision when it failed to assess whether the May 2014 opinion adequately considered the Veteran’s lay statements of record regarding his in-service injury, particularly in light of his August 2019 hearing testimony describing the circumstances of his low back injury in more detail. Upon further review of the May 2014 VA opinion and the Veteran’s August 2019 hearing testimony, the Board finds the opinion to be inadequate because it is based solely on a lack of documented injury during service and did not consider the Veteran’s lay statements of record with regard to suffering an in-service injury to his low back and experiencing a continuity of symptoms ever since. An opinion based on the absence of medical records without consideration of a veteran’s competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the record does not contain a medical opinion sufficient to fairly adjudicate the Veteran’s claim, the Board finds that remand is necessary to obtain an adequate medical opinion that fully assesses the nature and etiology of the Veteran’s lumbar spine disability. Accordingly, the matter is REMANDED for the following action: Obtain an addendum VA medical opinion from a VA physician (M.D.) of appropriate expertise to assess the nature and etiology of the Veteran’s lumbar spine disability. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the Veteran’s claims file in its entirety, to include a copy of this REMAND and the October 2020 Court Order and Joint Motion for Remand. The completion of this review must be noted in the report Thereafter, the examiner is asked to provide a complete and thorough medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability was incurred in or caused by an in-service injury, event, or illness? In providing the above opinion, the examiner must specifically address the Veteran’s August 2019 Board testimony, including: (i) due to his duties as a cook on a Navy ship, he routinely carried boxes weighing 40 to 70 pounds and that on one occasion while carrying a heavy box, he stumbled, which caused a box to fall on him forcefully and also caused him to hit his back on a case of meat that was behind him; and (ii) he has continued to experience low back pain ever since this in-service incident. The examiner is also requested to consider and address the positive medical opinions rendered by the Veteran’s VA physicians Dr. Vesely in February 2015 and Dr. Caroline in September 2019. It should be noted that the term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence, both for and against a conclusion, is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. It is imperative that the requested medical opinion reconcile all available evidence of record, to include the Veteran’s lay statements and hearing testimony, service treatment records, post-service medical records, including all prior VA examinations and medical opinions, and any other pertinent evidence of record. The examiner is reminded that the absence of documented complaint or treatment for a low back injury in the Veteran’s service treatment records cannot serve as the sole basis for a negative finding. The Veteran is considered competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinion offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. 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). The examiner is reminded that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.