Citation Nr: 21030985 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-29 997 DATE: May 20, 2021 REMANDED The appellant is a Veteran who served on active duty from February 1970 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010, rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran testified at a hearing before a Decision Review Officer. A transcript of the hearing is of record. In November 2017 a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a February 2018 decision the Board, amongst other issues, denied service connection for a cervical spine disability, and remanded the claim of entitlement to service connection for small radial tear L5-S1, with chronic low back pain. In March 2020, the Board denied service connection for a low back disability. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Order by the Court in accordance with a Joint Motion for Remand (JMR), the issue was remanded to the Board for additional development and adjudication. Entitlement to service connection for a low back disability The Veteran has reported that he injured his back during service, specifically as a result of a motor vehicle accident. Service treatment records contain a record from May 1973 when the Veteran was seen with complaints of intermittent back and neck pain, with a reference to the jeep accident 8 months prior. At his discharge examination in January 1974, he answered no to recurrent back pain. There is mention of the jeep wreck, but there was no notation of any back pain from this incident. Treatment records from the VAMC detail that at a February 2009 primary care follow up visit, he complained of lower back ache since service. An MRI of the spine was done in February 2009 that revealed a small radial tear of L5-S1 disc. At a September 2009 visit, he complained of low back pain and numbness in his legs. At an April 2010 visit, the Veteran was seen with complaints of chronic low back pain. In August 2011, he was seen with complaints of back pain. At the June 2012 RO hearing, the Veteran testified to seeking treatment at the Houston VAMC from 1974 to 1977 for his in-service back injuries. A request was made for the Houston VAMC 1974 to 1977 records, and a formal finding of availability was rendered in March 2013. In a reply from the Houston VAMC, it was noted a request was made to the archives for records from 1974- 1978; however, no records were located. In October 2018, the Veteran underwent an examination. He was diagnosed with lumbar degenerative disc disease. He reported that during service he was involved in a motor vehicle accident in which he was a passenger in a jeep that flipped over. He reported being transported to the ER, and having back pain ever since. He reported pain in his low back that is stabbing and sharp. The examiner noted the STRs are void for back related complaints during service, and the separation physical contains no indication the Veteran suffered from back pain or a back disability. The examiner concluded the Veteran's back disability less likely than not had its onset in or is otherwise related to his military service. In a November 2019 addendum, the examiner noted again there are no medical records of the Veteran's complaints of back pain during service, and the separation physical notes the jeep wreck but there is no notation of any back pain from this accident. To conclude, the small radial tear, L5-S1, less likely than not had its onset in or is otherwise related to his military service. As the October 2018 and November 2019 opinions each reference a lack of any mention of a back complaint during service, and the Veteran's contentions of continuity. The matter is REMANDED for the following action: 1. Obtain an addendum opinion as to the Veteran's low back disability claim. The need for an in-person examination is left to the discretion of the examiner. Following a review of the claims file, the examiner should prove an opinion for the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's low back disability is related to his service? The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to reference the Veteran's in-service report of back pain. To the extent the Veteran reported a low back injury in service, he is competent to so report. (Continued on the next page) The examiner is asked to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.