Citation Nr: 22008058 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-39 407 DATE: February 11, 2022 REMANDED Entitlement to service connection for a lower back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a July 2020 virtual Board hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. This case was remanded by the Board in August 2021. While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim is decided. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran seeks entitlement to service connection for a low back disability that he contends was suffered during his active duty service and continues through the present day. At the July 2020 virtual Board hearing, the Veteran indicated that he suffered an injury after tripping over a hill while doing an exercise on a nuclear storage facility. He stated that he did not seek treatment during that time. See July 2020 Board hearing p. 3. The Veteran also contends his low back condition is due to carrying an M60 machine gun while on active duty. See May 2018 Notice of Disagreement. A November 2021 VA examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale is that service treatment records do not contain complaints, treatment, or diagnosis for this condition, and that the first complaint was not documented until 2017. The Board finds this opinion insufficient. The examiner must provide reasoned rationales and bases for stated conclusions and the examiner failed to do so in this instance. Any negative opinion may not be based solely on the lack of documented evidence of injury in the service treatment records, in accordance with the United States Court of Veterans Appeals (Court) opinion in Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran previously testified that he did not seek treatment for his back in service, and that it was not until after discharge that he sought private medical treatment. Furthermore, the examiner did not address whether the Veteran's low back disability could be due to carrying an M60 machine gun, or due to a reported motor vehicle accident. These requirements were specifically stated in the August 2021 Board remand. Accordingly, the Board finds that the directives of its August 2021 remand have not yet been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). On remand, the examiner is specifically requested to provide an adequate opinion with reasoned bases and rationales for every conclusion stated. An opinion on the etiology of the Veteran's low back condition must include a discussion of all the pertinent evidence of record, not only the lack thereof. The matter is REMANDED for the following action: 1. Obtain an addendum opinion by the examiner who performed the November 2021 VA examination. If the provider is unavailable, obtain an opinion from a suitably qualified health care professional to determine the etiology of the Veteran's low back disability. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. After review of the claims file, including the Veteran's STRs, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability began during or is otherwise etiologically related to the Veteran's active duty service? The examiner must specifically review and discuss the evidence of record and provide an opinion supported by reasons and bases. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (b) Please specifically address the Veteran's lay assertion that his low back disability is due to carrying an M60 machine gun during service. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.