Citation Nr: 21023516 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-39 116 DATE: April 20, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for right leg numbness, claimed as secondary to a low back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1978 to July 1981 and from November 1981 to November 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2014 by a Department of Veterans Affairs (VA) Regional Office. In November 2018, the Board denied the Veteran’s applications to reopen his claims for service connection for a low back disorder and right leg numbness. He subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) and, in October 2019, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded such decision. In April 2020, the Board reopened and remanded the instant claims for additional development and they now return for further appellate review. 1. Entitlement to service connection for a low back disorder. Pursuant to the April 2020 Board remand, an addendum opinion was obtained in March 2021 in order to determine the etiology of the Veteran’s low back disorder (currently diagnosed as lumbar degenerative disc disease/lumbar spine disc protrusion). At such time, the examiner opined that it was less likely than not that such disorder was incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, she reported that no chronic diagnosis was made for the Veteran’s back disorder while on active duty and his symptoms were subjective only. The examiner further reported that a May 1984 separation examination noted that the Veteran sprained his lower back in 1980; however, the medical records did not note medical evaluations, treatment, or diagnosis for a back disorder, including a sprained back, while on active duty. Thus, she concluded that there was no objective medical evidence noted in the available medical records showing a link between the Veteran’s current back disorder and his time in military service. However, it appears that the March 2021 VA examiner offered a negative nexus opinion based primarily on the lack of documented in-service treatment for low back complaints. When a veteran has provided lay testimony of an in-service event, an examiner cannot rely on the absence of corroborating in-service medical records as the basis for a negative nexus opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In this regard, in an April 2011 statement, the Veteran reported that, while in service, he injured his back while relocating a HUD for a helicopter rotor. He further reported that, due to the injury, he was placed on medical stop for several weeks, attended sick call for the pain during a flare-up, and continued to have moderate to severe complications to the present time. Also, in a September 2018 statement, the Veteran’s friend, B.B., indicated that he had known the Veteran since 1980 and the Veteran told him on many occasions how much pain and discomfort his in-service injury caused him. B.B. also stated that he had watched and listened to him with respect to the pain, stiffness, and aches such injury had left upon him throughout the years. In another September 2018 statement, the Veteran’s friend, A.B., similarly indicated that she had known the Veteran all of her life, he constantly complained about his back pain and stiffness, and had told her on many occasions how much pain and discomfort his in-service injury caused him. Therefore, in light of the May 1984 documented report of a sprained lower back during service in 1980, the Veteran’s report of an in-service back injury, and his, B.B.’s, and A.B.’s statements reflecting that he experienced back pain since separation, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing such matters. 2. Entitlement to service connection for right leg numbness, claimed as secondary to a low back disorder. The Veteran claims that he has right leg numbness as secondary to his low back disorder. As the outcome of his claim for service connection for a low back disorder may affect his claim for right leg numbness as secondary to such disorder, the latter claim is inextricably intertwined with the former claim. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the Veteran’s claim for service connection for right leg numbness must be deferred until his claim for service connection for a low back disorder is resolved. The matters are REMANDED for the following action: Return the record to the March 2021 VA examiner for an addendum opinion addressing the etiology of the Veteran’s low back disorder. If she is unavailable, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s low back disorder (currently diagnosed as lumbar degenerative disc disease/lumbar spine disc protrusion) had its onset in, or is otherwise related to an injury or event, during service, to include the lower back sprain in 1980 as reported on his May 1984 separation examination, described by the Veteran as occurring while relocating a HUD for a helicopter rotor? (B) Did arthritis of the back manifest within one year of his service discharge? If so, please describe the manifestations. In offering such opinions, the examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran’s service treatment records are negative for complaints, treatment, or diagnosis referable to a low back disorder. He or she must also consider and discuss the Veteran’s report of an in-service back injury, and his, B.B.’s, and A.B.’s statements reflecting that he experienced back pain since separation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.