Citation Nr: 21042413 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-14 724 DATE: July 13, 2021 REMANDED Entitlement to service connection for a lumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from August 2001 to August 2005 and from January 2007 to June 2008. The Veteran has distinguished service in both Iraq and Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in February 2021. A transcript of the proceeding has been associated with the claims file. Entitlement to service connection for a lumbar spine condition is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As an initial matter, during the February 2021 Board hearing and in September 2017 and May 2019 statements in support of claim, the Veteran stated that he visited the McGuire VA Hospital in Richmond, VA for back spasms. However, the Veteran's claims file only includes VA treatment records dating back to 2012. Accordingly, a remand is necessary to obtain these records and associate them with the claims file. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran contends that his current back condition is the result of the physical demands of his service. The Veteran's DD-214 reveals that he served in Iraq from 2003 to 2004 and Afghanistan from 2007 to 2008. The Veteran's military occupational specialty was an infantry officer. His record reveals that he earned a Combat Infantryman Badge and a Bronze Service Star for his efforts. Additionally, the Veteran earned a Ranger Tab for completing Ranger School, a Parachutist Badge, and an Air Assault Badge. In his May 2019 statement in support of claim, he stated that while in the service he completed 4 annual competitions that culminated in 19 kilometer runs while wearing boots and carrying a 40-pound rucksack and weapon. In Ranger School, he stated he carried a 90-pound rucksack daily with 40 additional pounds for a weapon and gear and completed three more airborne drops. While in Iraq in 2003, the Veteran stated that he served as a rifle platoon leader and completed daily foot patrols in full armor and kit for an estimated 50 pounds of gear. He subsequently served as a mortar platoon leader, completed convoy escorts, mounted patrols, and served with the quick reaction force. He stated that he spent 16 or more hours sitting in a Humvee. He started experiencing back spasms, but due to the nature of his job and the operational tempo, he did not go to the aid station. While in Afghanistan, the Veteran stated that he spent long days in the Humvee with 50 pounds of gear resulting in an awkward position. During the February 2021 Board hearing, the Veteran testified that his first noticed back pain in Iraq in 2003 and he had difficulty bending over to put boots on. He said that he was given Motrin by his platoon medic. He further testified that his back condition got worse as his service continued. In Afghanistan in 2008, he stated that he did not have full range of motion. The Veteran also testified hat while in jump school and Ranger School, he participated in 8 jumps with 10-foot drops. He recalls one or two rough landings. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, as did the Veteran in this appeal, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran was afforded VA examinations in January 2017 and October 2017, both examiners offered a negative nexus opinion. However, neither examiner considered the Veteran's lay statements when rendering their opinions and their rationales were based solely on the fact that the Veteran's service treatment records contained only one notation for back pain in 2004. The Board notes that an examination is inadequate when the examiners fail to consider all the relevant evidence of record, including the Veteran's lay statements. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Here, the Board finds that a remand is necessary for a VA medical opinion that thoroughly considers the Veteran's statements regarding the physical demands of his military service. Moreover, the examination must consider the Veteran's lay statements regarding his back pain while serving in Iraq and Afghanistan, as his statements are consistent with the circumstances, conditions, and hardships of his service as an infantry officer deployed in a combat zone. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Finally, during the February 2021 Board hearing and in his September 2017 and May 2019 statements in support of claim, the Veteran indicated that his back condition worsened after his service-connected hernia surgery. The Board finds that a remand is necessary for a VA medical opinion that considers whether the Veteran's current back condition is proximately due to or aggravated beyond natural progression by his service-connected hernia repair. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from 2009 to the Present from the McGuire Hospital with the Richmond VA Medical Center. 2. After the above-referenced development is completed, schedule the Veteran for a VA examination for his lumbar spine condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the Veteran's lumbar spine condition at least as likely as not related to service, including the physical demands of his service? When rendering an opinion, the examiner must consider the Veteran's statements from September 2017, May 2019, and February 2021 regarding the conditions, circumstances, and hardships of his service in Iraq and Afghanistan. The examiner must consider the fact that the Veteran is a combat Veteran who earned a Combat Infantryman Badge, Bronze Service Star, Ranger Tab, Parachutist Badge, and Air Assault Badge during his periods of service. The examiner's opinion must not be based solely on the lack of evidence in his service treatment records as his lay statements are sufficient proof of an in-service incurrence. Any opinion expressed should be accompanied by a complete rationale. (b) Is the Veteran's lumbar spine condition at least as likely as not proximately due to his service-connected hernia repair? Is his lumbar spine condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability hernia repair? The examiner should consider the Veteran's contentions that his back pain increased in severity after his 2010 hernia repair surgery. Any opinion expressed should be accompanied by a complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.