Citation Nr: 21024431 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-44 552 DATE: April 22, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1957 to April 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 decision by a Department of Veterans Affairs (VA) regional office. This matter was remanded by the Board in March 2018, October 2019, and August 2020. While further delay is highly regrettable, the Board finds remand is yet again warranted in an attempt to obtain an adequate opinion. In that regard, when the Board has previously remanded this claim, it has instructed VA examiners to disregard the lack of documentation of a back disability in service in providing a medical opinion. While the fact that a disability was not documented in service treatment records is a factor that may, in general, weigh against a finding of nexus to service depending on the circumstances, it may never provide the sole basis for a negative opinion. However, in this case, as the VA examiners have been informed, the Veteran’s service treatment records were destroyed in a fire. As such, neither a VA examiner nor the Board may draw any negative inference from the lack of documentation or, indeed, assume that the disability was not documented. In that regard, the Veteran has asserted that he did, in fact, report to sick call for back pain during service, despite the finding of the most recent VA examiner, who examined the Veteran in December 2020, that he did not. Additionally, the December 2020 examiner provided inconsistent opinions. Specifically, the examiner first provided an opinion stating that the Veteran’s back disability was at least as likely as not related to service, noting that the Veteran “had predisposing back issues with connection to military service due to the often strenuous demands experienced by active military tasks – such as carrying heavy loads for extended time and distances.” However, on the same day, the examiner provided an opinion stating that the Veteran’s back disability was less likely than not related to service because the Veteran gave “a limited history of back symptoms while on active duty – unfortunately he never reported to military sick call with these problems.” The examiner provides no explanation for these inconsistent opinions. For the reasons stated above, the Board finds remand is again warranted so that an adequate opinion may be obtained which fully addresses the Veteran’s competent, credible lay statements and whether the Veteran’s current low back disability is consistent with the Veteran’s description of the onset and nature of his symptoms. Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his low back disability claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner who has not yet provided an opinion in this matter to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current low back disability had onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s duties as an infantryman such as carrying heavy weight for long distances. In offering the opinion, the examiner MUST consider that the Veteran’s service treatment records have been destroyed. The Board acknowledges that a lack of documentation from service presents a hardship for the examiner, but the examiner should consider whether the Veteran’s current back disability is consistent with the type that could have had onset during or been caused by the Veteran’s active duty service and is consistent with his reports. Assume that his reports of symptoms, carrying heavy weight for long distances, and reporting to sick call during service are credible. (Continued on the next page)   The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. M. C. WILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.