Citation Nr: 21021853 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-33 167 DATE: April 14, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to February 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in September 2018, at which point the claim was denied. The Veteran appealed the Board’s September 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In May 2019 the Court issued a joint motion for partial remand (JMPR) setting aside the Board’s September 2018 decision and remanding the issue for further proceedings. Following the May 2019 JMPR, the case was returned to the Board in September 2019 at which point the claim was remanded for further medical development. In October 2020 the case was again returned to the Board, at which point the claim was again remanded for further medical development. Entitlement to service connection for a lumbar spine disability is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the Veteran’s claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In November 2020 the VA proffered an addendum opinion regarding whether the Veteran’s current low back injury is related to service, to include the Veteran’s 20 in-service parachute jumps. The examiner opined that the Veteran’s low back injury less likely than not had its onset in service. In rendering a decision, the examiner noted in-service complaints of back pain and sciatica. However, the examiner concluded that the Veteran’s back pain resolved prior to his discharge, as no lumbar spine disability was noted on the Veteran’s separation examination. Additionally, the examiner noted the absence of medical evidence of a low back disability until February 2009. (11/3/2020, C&P Exam, p. 13-15). The Board finds that the November 2020 opinion is inadequate for evaluation purposes. In this regard, the examiner failed to consider competent and credible lay evidence of chronic low back pain following his discharge from service. Specifically, during an October 2012 VA thoracolumbar spine examination, the Veteran indicated that he hurt his back during a Special Forces Airborne jump and that the injury was “aggravated from that point on” depending on what he did. He further indicated that he sought treatment in the 1980s after aggravating his injury and was out of work for several days. Additionally, he asserts that he was diagnosed with degenerative disc disease with spinal stenosis in the 1990s and was treated with muscle relaxers. (10/4/2012, VA Examination, p. 13-14). The VA is required to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). When evaluating lay evidence, the Board must consider if the witness is competent to report the evidence. A lay person is competent to report information when they have knowledge of the facts or circumstances they are reporting; conversely, a lay person is not competent to report information that requires specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). However, a lay person is competent to report a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the present case, the Veteran reported medical treatment in the 1980s and a medical diagnosis in the 1990s, and he is competent to do so. Id. However, the November 2020 examiner did not address the Veteran’s competent reports of medical treatment in the 1980s and 1990s for a low back disability in concluding that there was “a temporal gap of 36 years . . .” between the Veteran’s discharge from active duty and his diagnosis of lumbar degenerative disc disease. As the November 2020 examiner failed to consider competent lay evidence, the opinion is inadequate. The claim must therefore be remanded for further medical development. Additionally, the Board notes that the Veteran’s private treatment records have not been updated since 2011. As the claim is being remanded on other grounds, the Veteran should be given an opportunity to submit updated private medical records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his private medical providers. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file and opine whether the Veteran’s low back disability is at least as likely as not related to service, to include the Veteran’s in-service parachute jumps. In addressing the above, the examiner must consider and discuss all in and post-service medical and other objective evidence, as well as all lay evidence, to include the Veteran's competent lay evidence as to his history, and as to the nature, onset, and continuity of symptoms. (10/4/2012, VA Examination, p. 13-14). If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.