Citation Nr: 21023204 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-13 417 DATE: April 20, 2021 REMANDED Entitlement to service connection for a lumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to September 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested the opportunity to be heard via a travel Board hearing. That request was subsequently withdrawn in writing by the Veteran’s representative in November 2018. The Board notes that the other issues appealed by the Veteran to the Board (service connection for bilateral shin splints and service connection for histoplasmosis) were decided in an April 2019 Board decision and an August 2020 RO rating decision. As such, they are no longer before the Board. This matter was previously before the Board in April 2019, when it was remanded for further development. In this case, the Board remanded the issue regarding service connection for the Veteran’s lumbar spine condition in April 2019 for a new VA examination and opinion as the prior February 2014 medical opinion did not provide a rationale. The December 2019 opinion obtained pursuant to the Board remand concluded that the Veteran’s lumbar spine condition was less likely than not incurred in or caused by an in-service injury or disease. The examiner supported this conclusion by stating there was no evidence in the record showing a back condition was incurred in service and there was no evidence of a back condition on the separation examination. The Board finds the December 2019 VA examiner’s opinion to be inadequate because it is based on the inaccurate factual premise that there was no in-service complaints or treatment related to the Veteran’s back. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran’s service treatment records (STRs) do show evidence of an in-service low back injury in July 1980, when the Veteran reported injuring his lower back when lifting a porcelain bathtub. The July 1980 medical record further notes muscle spasm and low back strain. In addition, the December 2019 VA examiner does not address and appears to dismiss the Veteran’s contentions regarding ongoing symptoms of back pain since the claimed in-service injury, and instead relies on an absence of documented treatment during and after service for the opinion rendered. A lack of contemporaneous medical records is not enough to render a negative nexus opinion and/or preclude service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, the Board finds that a remand is warranted to obtain an addendum opinion (and examination, if found necessary) that addresses the above deficiencies. The matters are REMANDED for the following action: Forward the claims file to an appropriate clinician for an addendum opinion. It is left up to the discretion of the clinician as to whether an examination is necessary to render the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lumbar spine condition began in or is etiologically related to the Veteran’s military service. The clinician must address the Veteran’s and other submitted lay statements of record regarding symptoms in and since service, as well as the July 1980 service treatment record showing reports of back pain after lifting a porcelain bathtub. The examiner may not dismiss the Veteran’s contentions regarding symptoms solely on the basis that they are not documented in contemporaneous medical records, unless it can be explained why the absence of medical records is medically significant. A complete rationale should be provided for any opinion reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.