Citation Nr: 21032594 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-50 034A DATE: May 27, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1961 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a virtual Board hearing. At the hearing, the Veteran's representative requested that the record be held open for 90 days in order to submit a nexus opinion. Tr. 6-7. Ninety days have passed since the hearing was held on February 8, 2021, and no such opinion was received. The Veteran relates his current back disability to an incident in service when he fell off a ladder and his back landed on the corner of a desk. See February 2021 Board hearing transcript (Tr.) at 2-3, 7; August 2017 Statement in Support of Claim; February 2017 Statement in Support of Claim. At present, the Veteran has not received a VA examination for his claimed back disability. The Board finds that an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the Veteran's VA treatment records establish the presence of a current back disability and the Veteran's credible testimony, combined with service treatment records indicating visits to the sick bay in 1962, are suggestive of an in-service event or injury to which the Veteran's current back disability may be associated. Furthermore, the record currently contains insufficient competent medical evidence to render a decision. On remand, a VA examination and etiology opinion should be obtained. Additionally, as the most recent VA treatment records in the file are from 2017, updated VA treatment records, as well as private treatment records, should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Then schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any back disability. The claims file should be made available to and reviewed by the examiner, to include updated VA and private treatment records obtained pursuant to this Remand. After a thorough review of the claims file, the examiner is asked to: (a.) Identify all back disabilities present since February 2017, even if resolved. In addressing this question, please consider (1) a February 2017 VA lumbar spine x-ray showing multilevel spondylosis and degenerative disc and facet joint changes, mild dextroscoliosis and minimal retrolisthesis of L2 and anterolisthesis of L4; and (2) the October 2017 MRI of the lumbar spine showing multilevel disc generation disc protrusion spondylosis and facet arthropathy, significant lateral recess and foraminal narrowing at multiple levels. (b.) For each back disability so diagnosed other than dextroscoliosis, please opine whether it is at least as likely as not (50 percent or greater probability) such disability had its onset in or is otherwise related to the Veteran's active service, to include a conceded fall from a ladder that resulted in the Veteran hitting his back on the corner of a desk. In addressing this question for each diagnosed back disability, the examiner must: (1) accept as true the Veteran's report of falling from a ladder and hitting his back on the corner of a desk, despite any lack of documentation of this injury. The examiner must review the Veteran's credible accounts of this in-service back injury found in the February 2021 Board hearing transcript at pages 2-3 and 7; the August 2017 Statement in Support of Claim; and the February 2017 Statement in Support of Claim, and determine whether a nexus to service is medically plausible based on the same. Basing a negative nexus opinion on the lack of documentation of this in-service injury will render the opinion inadequate and the opinion will be returned for an addendum. (2) accept as true the Veteran's credible testimony of seeking treatment for his back within one year of separating from service and experiencing back pain symptoms since service; that he has sought back treatment over the years since service and that those records are no longer available; and his spouse's credible testimony that he has had back pain for the last 17+ years. See Tr. 3-13. Basing a negative nexus opinion on the lack of documentation of treatment or medical care since service will render the opinion inadequate and the opinion will be returned for an addendum. (3) address the March 2017 VA physical therapy consult indicating the Veteran's complaints of low back pain since 1962 when he fell against a desk; (4) address the February 2017 VA treatment note indicating complaints of low back pain related to falling in service; and (5) address the February 2017 VA primary care nursing note indicating an "old back injury" and whether that is indicative of a nexus between the Veteran's back disability and service. (c) Does diagnosed dextroscoliosis it constitute a congenital defect or disease? Generally, for VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." (e) If dextroscoliosis is identified as a congenital defect, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during service, to include as the result of the above-described fall and back injury. In addressing this question, please consider (b)(1)-(b)(5) above. If so, please describe the resultant disability. (f) If the scoliosis is identified as a congenital disease, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that it was aggravated (worsened) by the Veteran's service, to include as a result of the above-described fall and back injury. In addressing this question, please consider (b)(1)-(b)(5) above. Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.