Citation Nr: 21022211 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-27 718 DATE: April 15, 2021 REMANDED Entitlement to service connection for low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2006 to December 2006, June 2007 to March 2008, and August 2009 to July 2010. The Veteran had additional service in the California Army National Guard, including periods of ACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision denying service connection for low back disability. In October 2018, the Board remanded this matter for further development. 1. Entitlement to service connection for low back disability is remanded. The Veteran asserts that his back disability is related to his time in active duty or from a back injury during ACDUTRA in May 2012. In October 2018, the Board remanded this matter to develop the record and to obtain a VA medical opinion regarding whether the Veteran’s back disability is related to service. As a result of the development conducted following remand, an information report was added to the claims file which, resolving doubt in favor of the Veteran, shows ACDUTRA from May 6, 2012, to May 20, 2012. Treatment records added to the claims file indicate that the Veteran reported for emergency treatment during annual training at National Training Center on May 12, 2012, for low back pain. The Veteran reported that he was performing react to contact exercises when he felt a sharp pain in the lumbar while taking a hill and that he had focal lumbar pain that radiates down his right leg. The Veteran was placed on light duty profile and diagnosed with lumbar radiculopathy. A May 20, 2012, emergency record from Weed Army Community Hospital appears to show that the Veteran reported pain for 7 days in the right lower paralumbar area radiating to the right buttock. The Veteran was diagnosed with backache and instructed to follow up at the Rotational Unit Bivouac Area (RUBA) as needed. The treatment record notes the Veteran has prescription medications for his back. In February 2020, the Veteran underwent VA examination for his back disability. The VA examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by service. The VA examiner noted the Veteran’s 2007 to 2008 period of active duty. The VA examiner noted 2014 VA treatment records noting onset of back pain two years prior and explained that the Veteran’s back pain therefore had an onset in 2012, after separation from service. The VA opinion is inadequate. The Veteran had three periods of active duty, with the last period ending July 2010, and service treatment records during his active duty note back complaints. A February 2010 questionnaire following deployment notes the Veteran’s report of back and/or neck pain. An August 2009 service treatment record notes diagnoses of scoliosis and muscle spasm. The VA examiner did not address the Veteran’s full periods of active duty and did not address back complaints during active duty. In addition, the VA examiner did not address the Veteran’s report of an injury during ACDUTRA in May 2012 or the May 2012 treatment records (noted above) discussing such an injury. Accordingly, remand is warranted to obtain additional VA medical opinion. While this matter is on remand, outstanding VA treatment records should be obtained, including VA treatment records from June 2020 to the present. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from June 2020 to the present. 2. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify all back disability during the claims period, even if resolved. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability had an onset in or is the result of a disease or injury during active duty or ACDUTRA, including the May 2012 ACDUTRA period. The examiner should consider all medical and lay evidence of record, including the Veteran’s reports and statements submitted from the Veteran’s spouse and friends regarding the May 2012 incident. The examiner should specifically address the May 2012 treatment records, the February 2010 questionnaire following deployment noting the Veteran’s report of back and/or neck pain, and service treatment records noting diagnoses of scoliosis and muscle spasm. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell 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.