Citation Nr: 21016226 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-10 257 DATE: March 22, 2021 REMANDED Service connection for a low back condition, to include degenerative arthritis of the spine.   REASONS FOR REMAND The Veteran served on active duty from August 1966 to July 1969. This case is on appeal from an August 2015 rating decision. In August 2019, the Board remanded the case for further development and adjudicative action. Service connection for a low back condition, to include degenerative arthritis of the spine, is remanded. This issue is remanded as there was not substantial compliance with the Board’s April 2019 remand directives. As the Board pointed out in its remand, the Veteran relates a current back condition to the events of service, including sleeping on a cot, driving large vehicles, and stacking sandbags. He maintains that he began to have pain in the lower back while in service, and that the pain continued after separating from service. The Board’s remand found that the Veteran’s statements were sufficient to warrant a VA examination addressing whether a current low back condition is related to service. The Board directed the examiner to consider the Veteran's statements regarding onset in-service and continuity of symptomatology. Upon remand, a VA examination was conducted in January 2020 with an addendum given in August 2020. The VA examiner noted diagnoses of degenerative disc disease and spondylosis. The examiner concluded that the Veteran’s low back condition less likely than not had its onset in or was aggravated by service, or began one year within separation from service. The examiner reasoned that there was “no record of treatment from 1969 (when [the V]eteran left service) to 2015” and “45 intervening years without a complaint of back pain.” Additionally, the examiner noted that “the greatest risk factors” for the Veteran’s diagnoses were “male gender and advancing age.” Finally, the examiner observed that the Veteran denied back pain at separation from service and that there was no medical evidence of osteoarthritis within one year of service. Although directed by the Board to do so, the VA examiner did not address the Veteran’s statements regarding the onset in-service of his symptoms and his statements regarding the continuity of symptomatology. To this end, the VA examiner correctly pointed out that the Veteran denied back pain at separation from service. However, the examiner did not consider his March 2016 statement that he did not seek treatment or report his symptoms during service because he ignored the problem during (and after) service “like any other good soldier.” He emphasized that he was “always told not to complain” about “anything” during service, so did not report his complaints. March 2016 VA Form 9. The Board finds that the Veteran’s statements are plausible and entirely credible. His STRs are notably devoid of any complaints or treatment. Hence, it appears his service separation examination is the inaccurate statement as to his physical condition at that time. While his sworn statement at separation tends to bear to some degree on his credibility at that time, the Board finds at this stage that it is not enough to entirely impeach the credibility of his current statements. Thus, the VA examiner’s failure to consider the Veteran’s credible testimony, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that VA opinion inadequate. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Relatedly, this VA examiner impermissibly relied on an absence of documented evidence during service and after service without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See id.; Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019). As such, the VA opinion is not substantially complaint with the Board’s prior remand, and a new opinion is needed. See Stegall v. West, 11 Vet. App. 268 (1998); see D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran’s low back condition. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to address whether a current low back condition at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service; or (4) is otherwise related to an in-service injury, event, or disease. (Continued on the next page)   In answering this question, the examiner is asked to consider the credible statements from the Veteran indicating that his low back symptoms started during service in Vietnam. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, and/or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.