Citation Nr: 21022484 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-26 356 DATE: April 15, 2021 ISSUE Entitlement to service connection for a chronic low back disability. REMANDED Entitlement to service connection for a chronic low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1978 to September 1982. Theis matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in November 2018. A transcript of the hearing is of record. This matter was last before the Board in May 2019, at which time the Veteran’s claim was remanded. Remand directives included duty to assist in obtaining VA treatment records and requesting a VA examination with opinion. The Board finds that its remand instructions were not in part substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a chronic low back disability is remanded. The Veteran asserts that his chronic low back disability is related to falling from a pole during a wireman training exercise during service. The Board remanded the claim in May 2019 for further development. The Board’s first remand directive instructed the RO to obtain any outstanding VA service treatment records from the New York City VA for the period from September 1978 to September 1982. The Board’s second remand directive was to schedule the Veteran for an examination to determine the nature and etiology of his chronic low back disability with medical opinion. For the first directive of obtaining VA treatment records, the Board finds the RO fulfilled the VA’s duty to notify and assist. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). The imposed obligations include a duty to make reasonable efforts to obtain relevant records. 38 U.S.C § 5103A; 38 C.F.R. § 3.159. Review of the record finds the RO requested records from the New York City VA Healthcare System in November 2019. On a later date in November 2019, the RO received notice from the New York City VA Healthcare System that a search for the records was conducted and no records were found. Following the notice, the RO notified the Veteran in a December 2019 letter that the records could not be found. Thus, the Board finds the first directive in the May 2019 remand has been substantially complied with. Turning to the second directive of requesting a VA examination and medical opinion the Board finds the medical opinion: (1) relied on lack of evidence in service; (2) failed to address the Veteran’s lay statements; and (3) provided statements of historical inaccuracies. In a December 2019 VA medical opinion, the examiner opined that the Veteran’s claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran was treated for lumbar spinal stenosis in 2012, which the examiner indicates is 29 years from discharge. The examiner stated “[t]his time lag is too long to connect the fall to his lumbar spinal stenosis.” The examiner further states “[e]ven an x-ray of 2012 demonstrated only mild degenerative changes of the lumbar spine and no evidence of an old lumbar spinal fracture.” The examiner’s rationale does not address the Veteran’s lay statements including trauma pain and self-treatment of the injury since service. Further, it is not sufficient to base an opinion on a mere lack of documentation. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran’s lay statements to provide negative opinion). See further Miller v. Wilkie, 32 Vet. App. 249, 262 (2020) (holding that “where the examiner failed to address the Veteran’s lay evidence and the Board fails to find the Veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination.”). As a final note to the rendered VA medical opinion, the examiner notes the Veteran was discharged from service for medical reasons. The examiner also notes the Veteran was discharged in 1983. A review of the record shows the Veteran was discharged in 1982 due to the end of his enlistment. An opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). Thus, the Board finds the medical opinion inadequate. Therefore, another remand is necessary. The matters are REMANDED for the following action: 1. Request an addendum opinion by an appropriate clinician as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s chronic low back disability is related to an in-service injury, event, or disease, including his fall from a pole during wireman training school exercise. Any opinion offered should be accompanied by the underlying reasons for the conclusions. The clinician must provide a complete rationale for the opinion provided. Complete rational should include an explanation of the evidence used to support the opinion, as well as an explanation as to why that evidence supports the conclusion. The clinician is reminded that the Veteran has provided competent statements. It is not sufficient to base an opinion on a mere lack of documentation of complaints in service or post-service. If the clinician feels that the requested opinion cannot be rendered without resorting to speculation, the clinician 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 clinician (i.e. additional facts are required or the clinician does not have the needed knowledge or training). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, 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.