Citation Nr: 21024745 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-27 120 DATE: April 26, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1993 to February 2001. This appeal arises from a November 2015 Department of Veterans’ Affairs (VA) Regional Office (RO) denial of service connection for a cervical spine and a lumbar spine disabilities. The Veteran held an informal conference with a Decision Review Officer (DRO) on February 9, 2016. The informal conference notes laid out various agreed upon actions, including the VA seeking private treatment records identified on a VA Form 21-4142 that the Veteran would submit and a new examination/opinion for the cervical spine disability. The Veteran has not submitted a new VA Form 21-4142 identifying new records. The Veteran was afforded a cervical spine examination on February 24, 2016. In March 2016 a Statement of the Case (SOC) issued, continuing the denial of the cervical and lumbar spine disabilities. The Veteran timely appealed by filing a Form 9. The Veteran did not indicate that he wanted a hearing on the Form 9. 1. Entitlement to service connection for a cervical spine disability The Board find that the February 24, 2016 cervical spine examination is inadequate for deciding this appeal and remands the issue for an adequate examination. Specifically, the examiner’s opinion against the claim is not supported by adequate rationale. The examiner stated: [T]he Veteran’s report of the event, the neck injury occurred with an event during military training (greater than 50% probability due to in-service incident); however, I do not have medical record to back up this report [and therefore] the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It is clear that the examiner’s negative opinion is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Therefore, this opinion is inadequate under Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, the Board remands this matter must be remanded for a new opinion. 2. Entitlement to service connection for a lumbar spine disability The Board finds no record of an examination of the Veteran’s lumbar spine. The record contains complaints of and credible contentions that the Veteran injured his lumbar spine in-service. The Board finds that the evidence of record is sufficient to trigger the VA’s duty to provide the Veteran’s with an adequate examination for his lumbar spine disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the VA must afford the Veteran an examination before the Board can properly adjudicate this claim on the merits. Specifically, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran’s claimed lumbar spine disability. The VA’s duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon at 79. Under McLendon, an examination is required only when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease” or that a disease manifested either in accordance with presumptive service connection regulations or as a result of a service-connected disability, (3) an indication that the current disability may be related to the in-service event or service-connected disability, and (4) insufficient evidence to decide the case. The Board finds that the McLendon factors have been fulfilled to require the VA to afford the Veteran with an examination. The Board notes that the Veteran has complained about back pain and numbness in his legs with his lower back issues. See February 2016 Cervical Spine Examination Remarks. The Veteran has stated that his back pain and symptoms started in service. The Board finds that the Veteran to be credible regarding his lay statements, as his contentions regarding this condition to be consistent throughout the record. While neither the Veteran nor the Board are competent to speak to an actual diagnosis of such complex diagnoses as thoracolumbar disabilities during service, or to the etiology of his current condition, the Board nonetheless finds that such assertion passes the low threshold under McLendon, to require the VA to request a medical examination/opinion. 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and any private medical records identified by the Veteran as pertinent to his claims. 2. Schedule the Veteran for a VA examination with an appropriately qualified examiner for his thoracolumbar and cervical spine disabilities. The examiner must review the claims file. The examiner is asked to identify all cervical and thoracolumbar spine disabilities proximate to or since the Veteran filed his claim in May 2015. If diagnoses cannot be provided for the Veteran’s thoracolumbar disabilities but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is must provide the following opinions: (a.) Is the Veteran’s thoracolumbar disability at least as likely as not (50 percent chance or greater) related to service? (b.) Any of the Veteran’s diagnosed cervical spine disabilities at least as likely as not (50 percent chance or greater) related to service? In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner’s attention is drawn to the Veteran’s statements made during the February 2016 VA Cervical Spine Examination, including the statement that “the veteran’s report of the event, the neck injury occurred with an event during military training (greater than 50% probability due to in-service incident)” and to the Veteran’s remarks recorded in Section XVI - Remarks section. The examiner must reconcile any conflicting medical evidence or opinions of record. A full rationale for all opinions must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.