Citation Nr: 21031941 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-20 729 DATE: May 25, 2021 REMANDED Entitlement to service connection for a recurrent lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1995 to September 1995. In March 2020, the Board of Veterans' Appeals (Board) denied service connection for a low back disorder. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted the Parties' Joint Motion for Remand; vacated the March 2020 Board decision; and remanded the Veteran's appeal to the Board for further action consistent with the Joint Motion for Remand. Entitlement to service connection for a lumbar spine disability is remanded. Service connection may be established for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be established for any disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The report of the August 1994 physical examination for service entrance states that the examiner found the "spine, other musculoskeletal" to be "normal" and did not identify any lumbar spine or low back disability. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225 (1991). The term noted denotes only such conditions as are recorded in the examination reports and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of those conditions. 38 C.F.R. § 3.304 (b); Crowe v. Brown, 7 Vet. App. 238 (1994); Contant v. Principi, 17 Vet. App. 116 (2003). When no pre existing condition is noted at entry into service, a veteran is presumed to have been found sound upon entry. The report of the August 1994 physical examination for service entrance noted that neither a lumbar spine disability nor other low back disability was identified. Therefore, the Veteran is entitled to the presumption of soundness as to a lumbar spine disability. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The service medical records note that the Veteran was seen for low back pain. An August 1995 treatment record states that the Veteran complained of low back pain associated with "pushups and sit-ups at PT." No lumbar spine or other low back disability was diagnosed. An August 1995 physical evaluation conducted for an August 1995 indicates that the Veteran was diagnosed with "chronic lower back pain." No lumbar spine disability was diagnosed on physical or X-ray examination. The remainder of the service treatment records do not reflect that a recurrent lumbar spine disability was diagnosed. A January 2018 written statement from a Dr. Van Adams states that the Veteran was diagnosed with "low back pain." The doctor opined that "one cannot say exactly how long this condition existed prior to the date of diagnosis or definitively state its cause" and "it is as likely as not that the rigors of [the Veteran's] US Army service, training and duties and her noted in-service aggravation of her back condition permanently worsened her back beyond the natural progression of her condition and contributes to her current back condition." The December 2020 Joint Motion for Remand indicates that the Board erroneously failed to address the January 2018 written statement from Dr. Van Adams. The report of a February 2019 spine examination conducted for the Department of Veterans Affairs (VA) and a July 2019 addendum thereto state that the Veteran was diagnosed with lumbosacral strain. The examiner concluded that "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event, or illness." The doctor commented that: "since the Veteran only completed 5 weeks of military training/service, in basic training with an emphasis on conditioning and exercises to improve physical stamina, the level and or severity of back pain expected would be minimal to none;" "a motor vehicle accident has a much higher kinetic energy and ability to create chronic pain from blunt force trauma then you would see with 45 weeks of physical training;" "therefore, it is much greater than 50% likely that the chronic low back issue that had already been going on for 2 years prior to entrance into the military in 1995 from a motor vehicle accident is the cause of her continued chronic debilitating pain syndrome at this time;" and "it is doubtful that the 4-5 weeks of physical training she performed significantly exacerbated the pain on a permanent basis." The examiner did not note or otherwise address Dr. Van Adams' opinion. Further, the Board is unable to discern whether the cited "chronic debilitating pain syndrome" is a reference to the diagnosed lumbosacral strain. In light of the cited deficiencies, the Board finds that the February 2019 VA examination report and the addendum thereto to be of essentially no probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that further VA spine evaluation is necessary. The matters are REMANDED for the following action: Schedule the Veteran for a VA spine examination conducted by an appropriate physician to assist in determining the nature and etiology of the claimed lumbar spine disability and any relationship to active service. The examiner must review the record, including the January 2018 written statement from Dr. Van Adams, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent lumbar spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent lumbar spine disability had its onset during active service or is related to any incident of service, including the documented in service low back pain associated with performing "pushups and sit-ups at PT." Reconcile all opinions rendered with those previously of record, including that of Dr. Van Adams. (c) If any identified recurrent lumbar spine disability is found to have clearly and unmistakably (obvious and manifest) pre-existed service entrance, opine whether it is clear and unmistakable (obvious and manifest) that such preexisting lumbar spine disability was not aggravated (permanently increased in severity beyond the natural progress of the disorder) during active service. Reconcile all opinions rendered with those previously of record, including that of Dr. Van Adams. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.