Citation Nr: 21025129 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-14 106 DATE: April 27, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1984 to December 1984. This issue comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned in an April 2018 Board hearing. A transcript of that hearing is of record. 1. Service connection for a low back disability is remanded. The Veteran contends that his back disability to include his degenerative joint disease and spinal fusion is etiologically related to his service. In August 2018, April 2020, and November 2020, the Board remanded this matter to the AOJ to obtain medical opinions. In those remands the Board specifically directed a VA examiner to opine as to whether it is at least as likely as not that the Veteran’s arthritis manifested within one year of separation of service or whether the Veteran’s low back disability is otherwise related to his service. Finally, the Board directed a VA examiner to address the Veteran’s competent statements that he had back pain since he left service. The Veteran underwent a VA back examination in October 2019. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner reasoned that during service the Veteran’s back pain was acute only. There examiner stated there is no evidence of chronicity of care. A nexus has not been established. The examiner noted that the Veteran’s service treatment records showed objective evidence of acute low back pain and low back strain on separation of service. The post-service treatment records showed a spinal fusion of the L4-5. The Veteran did state that he had seen several pain management doctors for back pain, however this was subjective only. There examiner concluded there is no chronicity or continuity of care over three decades after service for a chronic low back condition. In June 2020, VA obtained an addendum medical opinion. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the lumbosacral strain during service was acute during service. The examiner stated that records were further silent for complaints of or treatment for a low back condition. The examiner stated while that the lay statement conveys confirmation of the reported symptoms, there are no documented signs, symptoms or complaints in the record consistent with a diagnosis of a low back condition within one year of service. A September 2014 back disability benefits questionnaire noted a workers’ compensation back injury prior to the lumbar spine fusion. There was no evidence of chronicity of care and a nexus has not been established. In January 2021, the Veteran underwent a VA examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the clamed in-service injury, event, or illness. The examiner reasoned that the Veteran had documented acute low back pain in March 1984 that lasted two days assessed as “muscle strain” and a November 1984 “acute lumbsacral strain.” The examiner stated that there were no additional findings regarding back pain or back injury in the year following separation from service. The examiner noted that the Veteran had a workers’ compensation injury prior to a lumbar fusion in 2001. The examiner stated that based on the lack of chronicity or continuity of care documented between the Veteran’s service and lumbar fusion in 2001 and the lack of documentation of degenerative arthritis prior to the post-service work injury, it is less likely than not that his current diagnosis is due to his low back strain while in service. The examiner noted that the Veteran’s statement regarding his back pain were subjective and there was no documentation found showing evidence of degenerative arthritis prior to the post-service work injury, nor was there chronicity of care documented for a back complaint between service and his lumbar fusion in 2001. The Board finds that the VA January 2021 examiner, like the previous VA back examiners’ opinions, failed to adequately address the Veteran’s statement that he had back pain since he left service. The VA examiner’s rationale that the Veteran’s statement is subjective is not adequate reasoning for disregarding the evidence that the Veteran had back pain between his service and his lumbar fusion surgery. Further, with respect to the examiner’s contention that the record does not reflect chronicity or continuity of care after service, when assessing a claim, the Board notes that absence of documented treatment is not a basis for discrediting lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331, 1336 Fed. Cir. 2006). Additionally, the January 2021 examiner’s opinion appears to discount, without explanation, the probative weight of the Veteran’s own lay statements concerning continuity of symptomatology since the end of his military service. Essentially, it appears that the January 2021 examiner simply provided almost the exact same rationale as previous examiners, which was deemed inadequate in the April 2020 and November 2020 Board remands. The Board finds that an addendum opinion is warranted to adequately address the Veteran’s competent statement that he had back pain since he left service. Thus, the Board remands this matter for an additional VA opinion, and the examiner is asked to consider the totality of the record, and not just the absence of clinical treatment after service. See id. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s low back disability, characterized as status post lumbar fusion and degenerative joint disease of the lumbar spine, is at least as likely as not related to his low back sprain in service. The examiner must opine as to the following: (a.) Whether the Veteran’s low back disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to service. (b.) The examiner must opine as to whether it is at least as likely as not the Veteran’s degenerative arthritis manifested itself prior to the Veteran’s post-service work injury. (c.) The examiner must address the Veteran’s competent statement that he had back pain since service, prior to his post-service work injury (simply noting that the back pain is subjective will be deemed an inadequate rationale as well as a rationale solely relying on the absence of post-service chronicity of care). (Continued on the next page)   2. The examiner must provide a complete medical rationale for each opinion provided. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.