Citation Nr: 21024754 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-33 981 DATE: April 26, 2021 REMANDED Entitlement to service connection for lumbosacral strain, with degenerative joint disease, is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1992 to January 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). Although the present claim was originally characterized and developed as a claim to reopen a matter which was previously denied in August 2014, under 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. However, the claim will not be reconsidered under § 3.156(c) if the service records associated with the file subsequent to the initial rating decision could not have been obtained when VA first decided the claim, either because they did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). In this case, at the time of the August 2014 rating decision, the Veteran’s service treatment records (STRs) and service personnel records were associated with the claims file. However, one day after the August 2014 rating decision was promulgated, VA received from the Veteran an April 2004 Reserve Physical Profile report regarding right sided sciatica, which the Veteran relates to his low back. A review of the service department records available at the time of the August 2014 rating decision does not show that the April 2004 Reserve Physical Profile report was a part of those records. Thus, the Veteran’s service connection claim must be reconsidered without regard to the previous final denial and the issues on appeal have been recharacterized accordingly. 38 C.F.R. § 3.156 (c). In December 2020, a virtual hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Entitlement to service connection for lumbosacral strain, with degenerative joint disease, is remanded. The Veteran seeks service connection for a low back disability which he believes is related to injuries sustained in service. His STRs show he had complaints of low back pain while on active duty, including in January 1995. On examination for separation from service in December 1998 and on examination for the Navy Reserves in February 2000 and for the Army Reserves in April 2011, the Veteran had no complaints or manifestations of a low back disorder. In June 2016, the Veteran was afforded a VA examination in which he complained of injuring his lower back in 2003 while performing sit ups for physical fitness training. After examining the Veteran, a VA examiner opined that the Veteran’s current disabilities of lumbar radiculitis, right sciatica, and low back muscle strain were not related to his military service because the low back complaints (from 2003) were not found to have occurred during active duty dates. The examiner further noted that the Veteran’s service separation physical examination from his active duty period, dated December 1998, was silent for any evidence of back, spine, or radicular pathology, and concluded that there was no evidence to suggest that any current back or spine pathology was related to any complaints during the active period of service from August 1989 to August 1993. The Board finds the June 2016 VA medical opinion to be inadequate because it appears to have been based, in part, on an inaccurate medical history. Significantly, when the examination request was presented to the examiner, he was advised that the Veteran’s service dates were from August 1989 to August 1993. However, the Veteran served on active duty from January 1992 to January 1999, and as noted above, his STRs do include complaints of low back pain during that period, such as in January 1995, which was not considered by the examiner. Moreoever, although the low back injury referenced by the Veteran at the June 2016 VA examination and at the December 2020 Board hearing occurred in 2003, when he was not on active duty service, a May 2004 Line of Duty determination shows that the Veteran had complaints of hip pain extending to the bottom of his foot in December 2003 after having had an Army Physical Fitness Test administered. The Veteran stated that his private doctor had diagnosed this as sciatica, and it was determined that this occurred while performing INACDUTRA (inactive duty for training). See also April 2004 Reserve Physical Profile report. In light of the above, the Board finds that a new VA examination and medical opinion is necessary to address whether the Veteran has a current low back disability that is related to his in-service complaints of low back pain and/or to the injury he sustained while performing INACDUTRA in 2003. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his current lumbosacral spine disability. The examiner must review the claims file, to include this remand. For each current low back disability diagnosed, the examiner should opine whether it is at least as likely as not related to the Veteran’s military service. In providing the requested opinion, the examiner should consider and discuss the possible relationship between any current low back disability and the treatment the Veteran received for low back pain during his active duty period of service from January 1992 to January 1999, to specifically include in January 1995, as well as the injury he sustained during INACDUTRA in 2003. The examiner should provide a rationale to support the opinion. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.