Citation Nr: 21042248 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-04 219 DATE: July 12, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability (lower back condition) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in November 2019. As an initial matter, the Board notes that the November 2019 Board decision also remanded the Veteran's claim of entitlement to service connection for bilateral hearing loss. In a July 2020 rating decision, service connection was granted for this condition. As this represents a full grant of the benefit sought, the issue of entitlement to service connection for bilateral hearing loss is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). With respect to the Veteran's representation in this matter, the record shows that, in October 2015 and May 2019, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of Ralph J. Bratch of Bosley & Bratch. In August 2020, the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of Disabled American Veterans (DAV). As the request for a change in representation was received prior to the September 2020 certification of the appeal to the Board, the Board accepts the Veteran's August 2020 change in representation. See 38 C.F.R. § 20.1305(a). Therefore, DAV represents the Veteran in this appeal. Lastly, the Board notes that, on August 11, 2020, the Veteran's prior representative requested a 90-day extension to submit additional evidence and to prepare a brief. See August 2020 Correspondence. No response was provided, but the record remained open for more than the requested 90 days, during which the time the Veteran's current representative submitted a brief in support of the Veteran's appeal. See December 2020 Appellant's Post-Remand Brief. Moreover, the Veteran has not requested any additional extensions. As such, the Board may proceed with appellate review. Entitlement to service connection for a lower back condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran has received treatment from Physicians Primary Care of Southwest Florida (PPC). See PPC records, received April 2013. However, no records relating to such treatment have been associated with the claims file since April 2013, nor is there any indication that such records have been requested. As such, a remand is necessary to allow the AOJ to obtain pertinent private medical records. See 38 U.S.C. § 5103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed lower back condition. In February 2020, the Veteran underwent a VA examination in which the examiner noted diagnoses of lumbarization, lumbar spine degenerative disc disease, and bilateral lower extremity radiculopathy. With respect to the Veteran's lumbar spine degenerative disc disease and bilateral lower extremity radiculopathy, the examiner opined that such conditions were less likely than not related to his active duty service. In support of this opinion, the examiner stated that such conditions were consistent with age related causes. Though the examiner acknowledged that the Veteran reported in-service vehicle crashes and falling off a tank, the examiner stated that there was no evidence of the reported incidents. The examiner also noted that there was no medical evidence of complaints of lower back pain after discharge from service until 2013. See February 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ); February 2020 VA Medical Opinion DBQ. In other words, though the Veteran's report of in-service incidents were acknowledged, the examiner essentially relied exclusively on the absence of documentation of such incidents in finding that the conditions were consistent with age related causes. However, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, though the examiner noted that there was no evidence of complaints of lower back pain until 2013, the record reveals complaints of lower back pain as early as 2010. See PCC records; Florida Neurology Group records, received November 2013. As such, the examination appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, an examination is inadequate when, as indicated here, an examiner does not consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). With respect to the Veteran's diagnosed lumbarization, the examiner stated that such condition was a congenital defect present at birth and therefore clearly and unmistakably preexisted service. The examiner also opined that the Veteran's service treatment records (STRs) did not reveal any superimposed injury or disease. The examiner opined that the condition was not aggravated during service, noting that the STRs did not reveal any injury, accident, or condition to aggravate his lumbarization. See February 2020 VA Medical Opinion DBQ. However, a review of the Veteran's STRs reveal numerous complaints of lower back pain and a notation of increased lumbar lordosis. See STR-Medical. As such, the examination report appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, supra. Additionally, as noted above, an examination is inadequate when, as indicated here, an examiner does not consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. Additionally, the Board notes that, when addressing aggravation of a pre-existing condition, the question is not whether the evidence demonstrates that the condition was aggravated during service, but whether the evidence clearly and unmistakably shows that the condition did not increase in severity beyond its natural progression. As such, the Board finds the February 2020 opinion to be inadequate to the extent the examiner applied the wrong standard. Moreover, as discussed above, potentially pertinent private medical records have not been associated with the claims file. As such, the February 2020 etiological opinion is inadequate to the extent the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the February 2020 etiological opinion to be inadequate for adjudication purposes and, therefore, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed lower back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any pertinent outstanding medical records, whether VA or private, including records relating to treatment at Physicians Primary Care of Southwest Florida from April 2013 to current, as well as records relating to treatment at Bay Pines VAMC from July 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician, preferably one specializing in orthopedics, regarding the nature and etiology of the Veteran's lower back condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For the Veteran's diagnosed lumbarization, address the following: i. Is the Veteran's lumbarization a congenital defect or disease? THE EXAMINER IS REMINDED THAT A DISEASE GENERALLY REFERS TO A CONDITION THAT IS CONSIDERED CAPABLE OF IMPROVING OR DETERIORATING, WHILE A DEFECT IS GENERALLY NOT CONSIDERED CAPABLE OF IMPROVING OR DETERIORATING. ii. If the Veteran's lumbarization is deemed to be a CONGENITAL DEFECT, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a superimposed in-service disease or injury resulted in additional disability. The examiner is specifically asked to address the August 1970 notation of increased lumbar lordosis. iii. If the Veteran's lumbarization is deemed to be a CONGENITAL DISEASE, does the evidence clearly and unmistakably show that the Veteran had lumbarization prior to entrance to service? iv. If the Veteran's lumbarization did clearly and unmistakably pre-exist the Veteran's service, does the evidence CLEARLY AND UNMISTAKABLY show that the pre-existing scoliosis DID NOT increase in severity beyond the natural progress of the disorder (i.e. the condition was not aggravated by service)? v. If, and only if, the Veteran's lumbarization did not clearly and unmistakably pre-exist the Veteran's service, and is not a congenital defect or disease, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that it had its onset during, or is otherwise related, the Veteran's active duty service. (c.) For each diagnosed back condition other than lumbarization, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (d.) If, and only if, the Veteran's lumbarization is found to be related to service in subsection (b) above, for each diagnosed back condition other than lumbarization, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition is caused by the Veteran's lumbarization. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by the Veteran's lumbarization. (e.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's lay history, including reports of vehicle crashed and falling off a tank during service; and ii. The Veteran's STRs, including notations of lower back pain, an August 1970 notation of increased lumbar lordosis, and a November 1969 diagnosis of lumbarization. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that the lack of documented complaints or an in-service diagnosis, without more, is not an adequate basis for a negative opinion. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.