Citation Nr: 21029908 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-45 177 DATE: May 17, 2021 ISSUE Entitlement to service connection for a low back disability REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served in the Army from October 2002 to June 2005 and was discharged honorably. The Veteran served in the U.S. Army from June 2005 to March 2010 and was discharged dishonorably. See February 25, 2013 Correspondence (Administrative Decision). As a preliminary matter, the Board notes that while it does not preclude the Veteran from claiming benefits, the Veteran's active duty time for which he was dishonorably discharged cannot be the basis for a finding of an in-service incurrence of a disability. The Board's discussion will primarily focus on that period of October 2002 to June 2005 with regards to the Veteran's service connection claim. By way of background, this matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in December 2014 and December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO) Philadelphia, PA. In February 2019, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference Board Hearing. A transcript of that hearing is of record This matter was previously before the Board in June 2019. In that June 2019 decision, the Board (1) reopened and remanded the Veteran's claim of entitlement to service connection for a low back disability and (2) reopened and remanded the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to service- connected PTSD. In a September 2020 rating decision, the Veteran was granted service connection for hypertension. Therefore, that issue is no longer before the Board. In a September 2020 Supplemental Statement of the Case (SSOC), the Veteran's claim for entitlement to service connection for a low back disability remain denied. See September 16, 2020 SSOC. This matter has returned to the Board for appellate review. As will be discussed below, the Board finds that further development is required on this Veteran's low back disability claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998 It is important to note that the Veteran's relevant service records, including a separation from service Report of Medical Examination are not associated with the file. When service treatment records (STRs) are lost, missing, or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran and his representative that he can submit "alternative" sources in place of his missing service treatment records. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). See May 29, 2013 Memorandum re: formal finding on the unavailability of complete service treatment records. In May 2013 the VA sent the Veteran notice that his STRs were missing and unable to be located. The Veteran was notified that he may be able to furnish documents that can substitute for his service treatment records, e.g., statements from military medical personnel, medical evidence from hospitals, clinics and private physicians, buddy statements, etc. See May 30, 2013 VA Development Letter. Therefore, the Board finds VA has satisfied its heightened duty to assist. The Board also notes that in cases with missing service records, VA has a heightened duty to explain its findings and conclusions and to consider carefully resolving reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107 (b); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The legal standard for proving a claim for service connection is not lowered, but rather the Board's obligation to evaluate and discuss in a decision all the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). Entitlement to service connection for a low back disability is remanded. The Veteran contends that he is entitled to service connection because he injured his back in 2003 while carrying 170 to 180-pound boxes containing supplies. In his December 2015 Notice of Disagreement (NOD) the Veteran states that "I first started having issues with my back in 2003 while in Iraq." The Veteran indicated that in "early 2004 approximately, Jan-March I started to receive medication for my back." See December 21, 2015 NOD. The Veteran also submitted a December 2015 Buddy statement in support of his claim. See, December 2015, Buddy Lay Statement re: medications for back pain. The Veteran testified during his February 2019 Video conference Board hearing that he would pick up and deliver boxes as part of his duty as a supply specialist during service. See DD-214. The Veteran also testified during his hearing that his back pain has continued since his first tour of duty. See February 27, 2019 Board Hearing transcript pg. 6. Pursuant to the Board's June 2019 remand directives, the Veteran was afforded a December 2019 VA Back Conditions examination and medial opinion to determine the nature and etiology of his low back disability. In this examination, the December 2019 VA examiner diagnosed the Veteran with degenerative joint disease. The examiner opined that it was less likely as not (less than 50 percent probability) that the claimed back disability was incurred in or caused by the claimed injury, event, or illness in service. The examiner supported this conclusion by stating that the in-service back condition was acute only, and there is no evidence of chronicity of care, thus a nexus has not been established. The examiner also opined that the Veteran's current disability was most likely related to a post service injury. See December 19, 2019 Back Conditions Examination, pgs. 1-2. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson,21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board observes that while the examiner stated that the Veteran's in-service injury was acute, it is not clear to the Board how the examiner came to the conclusion that the Veteran's in-service injury was acute. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). Additionally, while the examiner opined that the Veteran's current disability may be related to a post service injury, the examiner does not cite any evidence to support this opinion or provide any reasoning to support this conclusion. The Board notes that in its remand directives, the examiner was instructed that all findings, conclusions, and opinions must be supported by a clear rationale. See June 7, 2019 BVA Decision, pg. 11. Moreover, the Board finds the examiner's rationale to be inadequate because the examiner did not properly address the Veteran's lay assertions of back problems during service as it relates to performing his duties as a supply specialist from October 2002 to June 2005. See December 2015 Notice of Disagreement (NOD); December 2015, Buddy Lay Statement re: medications for back pain; See also, February 2019 Board Hearing transcript, pgs. 4-6, re: back pain since first tour of duty. In effect, the examiner relied on the absence of documented treatment in-service for the negative opinion concerning the claimed disability. Importantly, an opinion that relies only on the absence of symptoms or treatment in-service is not adequate. For the reasons stated above, the Board finds that a new VA Back Conditions examination and medical opinion is warranted regarding the etiology of this Veteran's low back disability. Accordingly, this matter is REMANDED for the following action: 1. After obtaining the necessary authorization from Veteran, ensure that all outstanding VA treatment records and private treatment records are associated with the claims file. 2. Next, schedule the Veteran for a VA Back Conditions examination with a medical professional of sufficient expertise who has not previously examined the Veteran, to determine the nature and etiology of the Veteran's low back disability. The examiner must review all pertinent records associated with the claims file in its entirety, including a Copy of this remand. *The examiner should note this review in the examination report. Any studies or tests deemed necessary should be performed. The examiner must opine on the following: Whether the Veteran's low back disability at least as likely as not (a) began during active service, to include as related to an in-service injury, event or disease, including the Veteran's reports of lower back pain during service from performing duties as a supply specialist from October 2002 to June 2005, (b) manifested within one year after discharge from service, or (c) was noted during service with continuity of the same symptomology since service. In addressing the above, the VA examiner must consider and discuss the Veteran's lay assertions. If the Veteran's lay assertions in any regard are discounted, the examiner must clearly so state, and explain why. See December 2015 Buddy Statement, Receipt Date, December 21, 2015; See also, February 27, 2019 Board Hearing transcript, pgs. 4-6. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on next page.) 3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.