Citation Nr: 21025455
Decision Date: 04/28/21	Archive Date: 04/28/21

DOCKET NO. 13-01 087
DATE: April 28, 2021

REMANDED

Entitlement to service connection for a back disability is remanded.

Entitlement to a total disability based on individual unemployability is remanded.

REASONS FOR REMAND

The Veteran had active service from May 1972 to August 1972.

This matter originally came before the Board from a September 2010 rating decision.  Most recently, the Board issued a decision in May 2019 that denied the claims. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC).  In August 2020, the CAVC vacated and remanded the May 2019 Board decision.

1. Entitlement to service connection for a back disability is remanded.

With respect to the claim for service connection for a back disability, the CAVC determined that the Board had relied on an inadequate medical opinion.  The December 2018 VA examiner was found to have ignored two specific instructions that the Board had made in an earlier Remand. The examiner had been advised to address and consider the lay evidence of record, including buddy statements, and to not rely on the absence of a documented in-service back injury. A new examination to comply with the prior Remand was deemed necessary.

The Veteran, through his attorney, also argues that an opinion from a specialist is needed.  The Board agrees. Due to the time elapsed since the in-service back injury, the lack of medical documentation regarding the injury, and the possibility of subsequent intervening factors (i.e. the 1987 back injury), a specialist should render an etiological opinion regarding the Veteran’s current back disability.  

2. Entitlement to a total disability based on individual unemployability is remanded.

Finally, because a decision on the remanded issue of entitlement to service connection for a back condition could significantly impact a decision on the issue of entitlement to a total disability rating based on individual unemployability, the issues are inextricably intertwined.  A remand of the claims for entitlement to a total disability rating based on individual unemployability is required. 

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an orthopedic surgeon, orthopedic neurosurgeon, or similarly specialized clinician to determine the nature and etiology of the Veteran’s diagnosed back disability.  The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file.

After reviewing the claims file and examining the Veteran, the examiner should provide an opinion as to whether it is at least likely as not that the Veteran’s back disability had its onset in service or is otherwise etiologically related to active service. The examiner is directed to presume the Veteran was injured in 1972 when he was operating a floor buffer, that struck him in his lower back, and caused him to fall. 

The absence of a documented in-service injury may not be cited as a basis of a negative finding. 

However, the examiner is asked to comment whether there is any evidence to accept or reject the proposition that the Veteran experienced a chronic back disorder since service.

The examiner should specifically address the lay statements made by the Veteran and others regarding back pain since service.

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Rekowski

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.