Citation Nr: 21042321 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-46 162 DATE: July 12, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 through April 1968. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a back disability. The Veteran's notice of disagreement (NOD) was received in August 2013. The RO issued the statement of the case (SOC) in October 2015, and the Veteran's VA Form 9, substantive appeal was received in December 2015. In September 2018 the Board remanded the case to the RO for further development and adjudicative action. Unfortunately, for the reasons discussed below, another remand is required. Entitlement to service connection for a back disability is remanded. The Veteran seeks service connection for a back disability. In a September 2010 letter, the Veteran asserted that his back was injured while in service as a cook, which required heavy lifting and loading of many different items. Although the Veteran reported an old back injury and pain with lying down during a January 1966 report of medical history, the entrance examination specifically noted the Veteran's musculoskeletal, spinal, and bilateral extremities were normal. Thus, the presumption of soundness attaches. In order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304 (b). Pursuant to the Board's September 2018 remand, a VA examination and medical opinion were obtained in December 2019. The Veteran was diagnosed with degenerative arthritis of the spine. The examiner opined that the Veteran unmistakably had a pre-existing and ongoing back disorder. The examiner noted that the Veteran answered "Yes" to recurrent back pain on his January 1966 accession examination Report of Medical History. The examiner further noted that the January 1966 examining physician stated that the Veteran reported a pre-existing back injury, pain with lifting, and swelling in both feet with standing. The examiner also noted that an orthopedic consult was requested on the same day as the January 1966 examination and references "chronic back pain in lumbar area with radiation down front aspect of both legs." The examiner also opined that the evidence unmistakably shows that the Veteran's back disability was not aggravated during active duty service. The examiner noted that the orthopedic consult requested in January 1966 was completed a year later in March 1967, at which time the examining physician stated "history of back sprain with many similar episodes, but x 3 in service. Dx: LS strain by history." The VA examiner noted that at the time of this consult there was no current diagnosis of a back disability. The examiner also stated that there were no medical complaints or documents to substantiate an ongoing back problem while on active duty although there were regular visits for other conditions such as sore throats etc. The examiner noted that the Veteran's April 1968 separation examination reflects no current diagnoses and no complaints. The Board finds the December 2019 examiner's rationale with regard to the issue of aggravation is inadequate, as he relied upon the absence of an in-service diagnosis and continuous treatment for chronic back pain to conclude that the Veteran's pre-existing back disability was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing, essentially, that an examination was inadequate where the examiner relied on the absence of medical records to provide a negative opinion). In this respect, the Board observes that the March 1967 orthopedic consult note references three prior episodes of back sprain during active service, including an injury he sustained while lifting. See March 1967 orthopedic note. STRs dated in July 1967 reveal that the Veteran suffered an injury to his lower back while at the swimming pool. He was referred to a doctor for evaluation but no record of the results of that evaluation are of record. Furthermore, the examiner did not address the Veteran's statements that his MOS during service required him to lift heavy objects on a daily basis or his statement that he has experienced worsening back pain continuously since service. See September 2010 lay statement. As such, another remand is necessary to fully and fairly adjudicate this issue. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the nature and etiology of the Veteran's back disability. The Veteran's claims file must be made available to and reviewed by the examiner. Based on review of the record, the examiner is requested to provide the following opinions: (a) Whether the Veteran's back disability clearly and unmistakably (obvious, manifest, or undebatable) preexisted the Veteran's active service from April 1966 through April 1968? And, if so, (b) Whether the Veteran's back disability was clearly and unmistakably NOT aggravated by service? (c) If the answer to (a) or (b) is no, the examiner is asked to address whether a current back disability is at least as likely as not (a 50% or greater probability) incurred in or otherwise related to his service? The examiner is requested to consider and address, as appropriate: The Veteran's January 1966 enlistment examination indicating that the Veteran reported chronic recurring back pain and that clinical examination of the spine was normal. Orthopedic consult note dated in March 1967 documenting complaints of back pain following a back injury while lifting and noting three previous episodes of back sprain in service. Service treatment note dated in July 1967 documenting that the Veteran suffered an injury to his lower back while at the swimming pool and was referred to a doctor for evaluation. The Veteran's September 2010 lay statement wherein he reports that his duties during service involved the daily lifting of heavy objects and states that he has experienced worsening back pain since his time in service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report inservice and post-service symptom experiences and other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. J. Abrams Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.