Citation Nr: 21029337 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-10 219 DATE: May 13, 2021 REMANDED Entitlement to service connection for a low back disorder, to include arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1985 to August 2008. In the February 2016 Form 9, the Veteran requested a hearing before the Board. The hearing was scheduled for June 2019, however, prior to the hearing the Veteran requested that he be allowed to reschedule the hearing. The Board sent a hearing clarification letter to the Veteran in March 2021. This letter notified the Veteran that he had 30 days to respond, and if no response was received within 30 days, the Board would conclude that he did not desire a hearing. The Board notes that no response was received within 30 days of the hearing clarification letter. Thus, as all due process requirements have been met, the Board will proceed to adjudication of the case based on the current evidence of record. Entitlement to service connection for a low back disorder, to include arthritis is remanded. The Veteran asserts service connection for a low back disorder, to include arthritis of the spine. Specifically, the Veteran contends that his low back disorder is the result of his work as a light infantry soldier and as a ranger while in-service. He further maintains that his low back disorder was masked by the medications he took for his service-connected bilateral knee disorders. In August 2016, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the examiner opined that the Veteran's claim low back disorder is less likely than not incurred in or caused by the Veteran's active military service. In support of this conclusion, the examiner explained that the Veteran's complaints of low back pain during active service were acute and transitory in nature. Further, the examiner highlighted that at the time of the Veteran's separation examination, there was no reported low back disorder noted. Moreover, the examiner found that the Veteran's medical records do not reveal any low back complaints until June 2012. The Board finds that the VA opinion is inadequate for purposes of determining service connection because it fails to consider the Veteran's competent lay statements and it also does not provide an adequate rationale. The Veteran has asserted continued back problems, which he argues may now include disc pathology. When an examiner fails to address a veteran's lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). Given these deficiencies, an addendum opinion is required with respect to the Veteran's service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of his peripheral neuropathy of the bilateral lower extremities. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: Return the April 2016 examination reports to the prior examiner, or a similarly situated examiner for addendum opinions. (If determined necessary, schedule the Veteran for VA examinations with examiner(s) of appropriate expertise to determine the nature and etiology of the claimed low back disorder and migraine disorder.) In either case, The examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. The examiner must provide an opinion as to whether the Veteran's claimed low back disorder is at least as likely as not (50 percent or greater probability) caused by or results from the Veteran's active service. In providing the requested opinions, the examiner(s) should refer to the pertinent evidence of record, including the Veteran's lay statements in support of his claims; specifically, the circumstances of the Veteran's service as detailed in the attachment to his March 2016 VA Form 9. Additionally, the examiner should consider the Veteran's Parachutist Badge when discussing the circumstances of the Veteran's service. Also, the examiner should discuss the Veteran's contention that the medications he took for his service-connected bilateral knee disorders masked the pain for his claimed low back disorder. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.