Citation Nr: 21028704
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 12-27 642A
DATE: May 11, 2021

REMANDED

Entitlement to service connection for low back condition is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1992 to July 1995. 

This matter comes before the Board of Veterans' Appeals (Board) following January 2018 and October 2019 Board Remands. This matter was originally on appeal from January 2010 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In August 2017, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record.

In October 2019, the Board denied entitlement to service connection for the Veteran's low back condition. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). An August 2020 Court order granted the parties' August 2020 Joint Motion for Partial Remand (JMPR).

In August 2020, CAVC granted the parties' JMPR to vacate and remand the October 2019 Board decision. The parties' agreed that the Board erred by relying on an inadequate examination where the examiner did not take the Veteran's lay assertions regarding his low back condition into account when opining whether the Veteran's low back condition was due to an in-service injury.

Accordingly, a remand is warranted so that an adequate opinion can be obtained regarding service connection for a low back condition that specifically considers the Veteran's lay assertions of record when assessing the question of continuity. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion it must ensure that the examination is adequate.)

The matters are REMANDED for the following action: 

1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records.

2. Obtain an addendum opinion regarding the Veteran's low back condition.

An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. The claims file and a copy of this remand must be provided to and reviewed by the examiner. 

(a.) The examiner must specifically address the question of whether it is at least as likely as not (i.e., at least a 50 percent probability or higher) the Veteran's current low back strain had its onset during service or is related to any in-service disease, event, or injury, to include the documented January 1994 back injury. Additionally, the examiner must specifically address the Veteran's statement that he fell and hit his back on a locker and that he has had pain "off and on" since that injury when discussing the issue of continuity of symptoms. Please discuss whether the Veteran's assertions are generally inconsistent with medical knowledge or implausible, and whether the Veteran's reports about symptoms experienced over the years align with how the low back disability is known to develop.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Daley, Associate 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.