Citation Nr: 21042148 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-44 414 DATE: July 12, 2021 REMANDED Entitlement to service connection for a back condition, to include low back strain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1979 to November 1983, and in the United States Army from February to December 2003, from August 2006 to August 2007, and from March 2008 to May 2009. He also had additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2019, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This claim was previously before the Board in September 2019, at which time it was remanded to the RO in order to obtain all of the Veteran's service personnel and treatment records. At that time, claims of entitlement to service connection for bilateral knee disabilities were part of the appeal. While on remand, in an April 2021 rating decision, the RO granted service connection for patellofemoral pain syndrome with arthritis of the right and left knee. As such are full grants of the benefits sought on appeal with respect to these issues, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Unfortunately, for the reasons set forth below, the Board finds that another remand is warranted. The Veteran asserts that he injured his back in his first period of service, while serving in the Air Force. His service treatment records show a May 2002 report of medical history in which low back pain, which was worse with repetition and treated with NSAIDs, was noted. The report indicated that the Veteran had an "old musculoskeletal strain" of the low back, which was symptomatic with overuse. Although this report was not created during the Veteran's active duty service, it clearly shows that by the time he was deployed in February 2003, a back condition existed. At his March 2019 videoconference hearing, the Veteran testified that he began to experience back symptoms while in the Air Force, possibly as a result of his work therein, paving roads and using a jackhammer. He then explained that his back condition subsequently began to flare up while he was performing physical labor as an Army combat engineer, and that he has continued to experience back pain and problems since that time. The Veteran testified that the pain had existed since service and never completely gone away. When he was deployed by the Army in 2006 and again in 2008, he was tasked with running heavy equipment and noticed that his back symptoms were aggravated by such. His wife testified that she noticed that the Veteran's Army deployments seemed to aggravate his back, and that the Veteran reported his symptoms to her following such deployments. In March 2014, the Veteran underwent a VA examination. At that time, a diagnosis of sprain and strain of back was confirmed. Concerning a nexus to service, the examiner was asked to address whether the Veteran's back condition was at least as likely as not incurred in or caused by the Veteran's service, to particularly include his 2003 Army deployment. In addition, the examiner was asked to address whether the Veteran's back condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by his 2003 Army deployment. The examiner concluded only that the condition was less likely than not due to service. As rationale, he explained that the in-service condition was acute and there was no evidence of chronicity of care. Thus, he noted, a nexus had not been established. On the question of aggravation, the examiner concluded that "temporary aggravation is plausible," but there was no evidence of a permanent aggravation of the back condition. As rationale, he indicated that the "current medical literature does not support." The Board must find that this examination report is inadequate for purposes of deciding the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examiner relied on the absence of records showing in-service treatment for the Veteran's back condition, and did not address the Veteran's report of an injury and subsequent back pain. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). In February 2021, the RO requested an additional VA examination. At that time, a VA examiner concluded that it was less likely than not that the Veteran's back condition was due to service. As rationale, she explained that, other than a pair of notes in 2002, there was no documentation of back pain chronicity. For the same reasons as above, the Board finds that this opinion is wholly inadequate. See Barr, supra; Dalton, supra. Thus, to date, there exists no adequate medical opinion which properly addresses the Veteran's claim of entitlement to service connection for a back condition, to include low back strain. Thus, a remand is warranted to provide the Veteran with such. The matter is REMANDED for the following action: Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his back condition, to include low back strain. The record must be made available to the examiner. Thereafter, the examiner should address the following inquiries: Is there clear and unmistakable evidence that the Veteran's back condition pre-existed his entrance to any of his periods of Army active duty service in February 2003, August 2006 and March 2008? In this regard, the examiner should consider the May 2002 report of medical history which shows a musculoskeletal strain of the low back. (i) If there is clear and unmistakable evidence that a back condition pre-existed the Veteran's periods of Army service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such pre-existing disorder did not undergo an increase in the underlying pathology, i.e., was not aggravated, during service. In offering such opinion, the examiner should consider the Veteran's report that he injured his back in the Air Force and that subsequently performing physical labor as an Army combat engineer caused his back symptoms to increase. If there was an increase in the severity of the Veteran's back condition, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that a back condition pre-existed the Veteran's periods of Army service, then the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is related to either his Air Force service or his periods of Army service, to include his duties involving physical labor, such as building roads and using heavy equipment. A rationale for any opinion offered should be provided. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.