Citation Nr: 21029779 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-12 116A DATE: May 17, 2021 ORDER New and material evidence having been received, the Veteran's claim to reopen entitlement to service connection for a low back disability is granted. REMANDED The issue of entitlement to service connection fr a low back disability, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. A September 2008 rating decision denied entitlement to service connection for low back pain; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the September 2008 rating decision. 2. Evidence received since the September 2008 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The September 2008 rating decision which denied entitlement to service connection for low back pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for a low back disability is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to May 1988, from September 1990 to December 1990, and from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. Entitlement to service connection for a low back disability was denied in a September 2008 rating decision because there was no evidence that it was more likely than not that the Veteran's low back pain was directly related to his active service. Since the September 2008 rating decision, new and material evidence has been received, including the December 2018 claim, which reflects that the Veteran contends his current low back disability is secondary to his service-connected left ankle disability. The Board finds that new and material evidence has been received which is sufficient to reopen the claim for entitlement to service connection for a low back disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran seeks entitlement to service connection for a low back disability. The Veteran was provided a VA examination as to his low back condition in January 2019. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the January 2019 VA examination related to the Veteran's low back disability is inadequate for decision-making purposes. Upon physical examination, the VA examiner diagnosed the Veteran with degenerative arthritis of the spine. The VA examiner opined that the Veteran's current low back disability is less likely than not proximately due to or the result of his service-connected left ankle disability. As rationale, the VA examiner noted that the onset of the Veteran's low back disability was late 1980s into 1990 with low back pain and stiffness. Additionally, the Veteran reported an in-service temporary profile due to his low back. The VA examiner further explained that obesity and congenital spine predisposition have an effect on low back pain. As such, the VA examiner concluded that the Veteran's low back disability is less likely than not proximately due to or the result of his left ankle disability. However, the January 2019 VA examiner did not provide an opinion as to whether the Veteran's low back disability is aggravated by his service-connected left ankle disability. In that regard, the Board notes that an opinion to the effect that one disability is not at least as likely as not "caused by or a result of" another disability does not answer the question of whether it is at least as likely as not that one disability is aggravated by another. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Additionally, the January 2019 VA examiner did not provide an opinion as to whether the Veteran's current low back disability is directly related to his active service. The Board notes that the VA examiner reported that the onset of the Veteran's low back pain was in the late 1980's into 1990, during the Veteran's active service. As such, on remand the VA examiner must provide an opinion as to whether the Veteran's current low back disability is directly related to his active service. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from February 2020. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matter being remanded, to include from February 2020. 2. After the above, forward the record and a copy of this remand to the examiner who conducted the January 2019 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability that is related to his active service. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the VA examiner should reconcile his/her opinion with the Veteran's reports that his low back pain began in the late 1980's into 1990, during his active service. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability that is proximately due to or the result of his service-connected disability, specifically his service-connected left ankle disability. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the low back disability is shown to be "predominantly" due to or result of his left ankle disability, but rather, whether there is any contributing degree of etiological relationship to the left ankle disability. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability that is aggravated beyond natural progression by his service-connected left ankle disability. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the low back disability is shown to be aggravated beyond natural progression "predominantly" by the left ankle disability, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected left ankle disability. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a low back disability may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.