Citation Nr: 21029233 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 20-27 540 DATE: May 13, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that reconsidered a June 2018 denial of service connection for a back disability. The Veteran's appeal seeking service connection for a back disability has been characterized and developed as a claim to reopen a prior final denial of service connection. In this regard, a June 2018 rating decision initially denied service connection for a back disability. However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the original claim, which remains pending until a subsequent adjudication directly responds to the relevant evidence. See Beraud v. McDonald, 766 F.3d 1402 (2014). The Veteran submitted a private medical opinion relating his back disability to service in October 2018. Accordingly, the initial claim remained pending until readjudicated by the October 2018 rating decision. Therefore, the Board finds the June 2018 denial of service connection for a back disability did not become final. Accordingly, the Board will review service connection for a back disability on a de novo basis. The Board has characterized the claim accordingly. Entitlement to service connection for a back disability is remanded. The Veteran asserts that he has a back disability that began during service and has persisted since. The Veteran was provided a VA back examination in May 2018. The examiner diagnosed degenerative arthritis of the spine and opined it was less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that the Veteran's November 1967 separation examination did not reveal evidence of a chronic back disability. The examiner opined the degenerative arthritis was a normal condition of aging and use of the back over many years. However, the examiner did not address the Veteran's September 1966 service treatment record that shows he complained of back pain, private treatment records that describe the back disability as long-standing, or the Veteran's assertions that he has experienced back pain service. Accordingly, the Board finds the examiner's opinion to be inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical opinion based on an inaccurate factual premise has no probative value). The Veteran submitted two private medical opinions in support of his claim, but the Board finds these opinions are also unfortunately inadequate for adjudication purposes. Both of the physicians noted they reviewed the claims file and opined the back disability was most likely caused by or a result of in-service trauma, but did not support their opinions with a clear explanation of how they reached their conclusions based on the specific evidence in the case. For instance, the May 2019 opinion noted the Veteran had been continually treated for back problems since service, but it's not clear what evidence, e.g. statements from the Veteran's or treatment records that are not associated with the record, was used to support this conclusion. For these reasons, the Board finds the examiners' opinions to be inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Accordingly, a remand to schedule an examination and obtain an adequate etiology opinion is required. See 38U.S.C.§5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In addition, the Veteran's private treatment records describe the Veteran's back disability as long-standing, but the records associated with the claims file do not actually document treatment for a back disability for an extended period following his discharge from service. On remand, any outstanding relevant treatment records should be obtained. See 38U.S.C.§5103A(b). The matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding private medical records reflecting treatment for the back disability, particularly any records documenting treatment for back issues close in time to his period of active duty service. If such records are identified, then obtain those records and associate them with the electronic claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The claims file should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide diagnoses for all back disabilities. b. As to each back disability provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is due to a disease or injury while on active duty c. Provide an opinion as to whether arthritis manifested in the first post-service year. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above question the examiner should consider and discuss the May 2018 VA examiner's opinion and the private medical opinions received in August 2018 and in May 2019. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.