Citation Nr: 21023413 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-30 469 DATE: April 20, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a skin condition on the back is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to July 1989 and from November 1990 to May 1991. He also had additional service with the Louisiana Army National Guard. In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been before the Board on several prior occasions, most recently, in July 2020. There has not been substantial compliance with the prior remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the Board’s July 2020 remand, the agency of original jurisdiction (AOJ) granted service connection for left foot strain in a November 2020 rating decision. The grant of service connection for a left foot strain represents a full grant of the benefit sought for that issue, and, thus, that issue is no longer before the Board. 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that he has a low back disability that began in service and has continued since service. The claim must be remanded again because the December 2020 addendum medical is inadequate. The opinion provider reached a negative nexus opinion, but impermissibly relied upon a lack documented treatment since service as affirmative evidence that a “pattern of chronicity has not been established.” Additionally, the opinion provider failed to explain why the Veteran’s credible lay testimony that he continues to have the pain experienced following his injury in service at present time is not evidence of continuity of symptomatology. The Veteran testified under oath that he received medical care at the time of in-service injury at the hospital at Fort Hood. However, the opinion provider stated that the Veteran did not seek medical care at the time of injury. A medical opinion that does not consider all evidence of record, including lay statements by the Veteran, is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). On remand, an adequate addendum etiology opinion must be obtained. 2. Entitlement to service connection for a skin condition on the back is remanded. The Veteran contends that he has a skin condition on his back that began in service and has continued since service. The claim must be remanded again because the December 2020 addendum opinion is inadequate. The opinion provider reached a negative nexus opinion, but impermissibly discounted the Veteran’s lay statements that the acne on his back began in service and was treated with over-the-counter medications by stating that the Veteran did not seek medical attention until approximately ten years ago. Additionally, the opinion provider impermissibly relied upon the Veteran’s time in service being “very short” to support a negative nexus. Finally, the opinion provider impermissibly relied upon an absence of medical treatment to support their conclusion that there was no pattern of chronicity. On remand, a new, adequate addendum etiology opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the present. 2. After completion of the foregoing, obtain an addendum opinion from an appropriate clinician to address the etiology of the Veteran’s back condition. The opinion providers should be provided with all pertinent documents, including a copy of this remand. If the opinion provider determines an opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of pertinent documents and any additional examination or testing, if necessary, the opinion provider should answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed lumbosacral strain is related to his active service? In answering the foregoing, the examiner should consider the following: (i) the Veteran’s report that the suffered a back injury in service for which he sought medical treatment at a hospital on Fort Hood and was told that he pulled a muscle, (ii) a motor vehicle crash after the Veteran left service in which his back was injured, and (iii) the Veteran’s testimony that his back continues to hurt. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of (1) above, obtain an addendum opinion from an appropriate clinician to address the etiology of the Veteran’s claimed skin condition of the back. The opinion providers should be provided with all pertinent documents, including a copy of this remand. If the opinion provider determines an opinion cannot be provided without examination of the Veteran, one should be scheduled. After a review of pertinent documents and any additional examination or testing, if necessary, the opinion provider should answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed acne on the back is related to his active service? In answering the above, the opinion provider should consider the Veteran’s testimony that the skin condition began in service, was treated with over-the-counter medications, and that he eventually sought medical treatment when the condition worsened. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. Opinion providers are notified that the Veteran is competent to report symptoms he has experienced and their date of onset. Opinion providers may not rely solely on an absence of medical treatment in determining the Veteran has not experienced continuity of symptomatology since service. If the opinion provider determines that a requested opinion cannot be provided without resort to speculation, they must say why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.