Citation Nr: 21020767 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-34 610 DATE: April 8, 2021 REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1980 to October 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018 and June 2019, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. Entitlement to service connection for degenerative disc disease (DDD) of the lumbosacral spine is remanded. By law, “[t]he Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.” 38 U.S.C. § 5107(b). Numerous other veterans’ statues and regulations require consideration of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-35 (Fed. Cir. 2006). Relevant here, “lay evidence may be used to establish a medical condition, including causation.” King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Whether a medical issue is beyond the competence of a layperson must be determined on a case-by-case basis. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). For instance, a layperson will be competent to identify the condition where the condition is simple (a broken leg), and sometimes not (cancer). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (2007). The bottom line is that the Board cannot categorically deem lay evidence incompetent. King, 700 F.3d at 1345. And what the Board cannot do it directly, it may not do indirectly by relying on a medical opinion that does so. In the Veteran’s case, a December 2019 examiner explained that (1) the medical model instructs medical professionals to base their decision on credible medical evidence and (2) that lay evidence is not credible medical evidence. Taken together, the examiner appears to be saying that a medical professional should not base their decisions on lay testimony. What’s more, the examiner relied, in part, on the fact that there were no documented back pain complaints until 2011. This is factually inaccurate as VA medical records show a chief complaint and assessment of back pain as early as June 2005. Because the examiner categorically deemed lay evidence incompetent and relied on an inaccurate factual premise, remand is necessary for an addendum. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Remand is further warranted to obtain relevant records in the custody of a Federal department or agency. VA must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1). As part of the duty to assist, VA must, in appropriate cases, obtain relevant records from a Federal department or agency, such as the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonably possibility of helping to substantiate the veteran’s claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Here, a January 2012 Mental Health Note reads: “[the Veteran] is not working currently and is applying for disability (both VA and SS) on his back.” Later entries confirm the SSA awarded the Veteran benefits. To date, those records have not been associated with the claims file, nor does it appear that an attempt has been made to obtain them. Because the Veteran’s SSA records may contain evidence relevant to the claim on appeal, remand is also necessary to allow VA to request them. Id. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the medical records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. Then, arrange for an appropriate healthcare provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his back disability had its clinical onset during service or is due to an event or incident of the Veteran’s period of active service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.