Citation Nr: 22010685 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 12-26 410 DATE: February 24, 2022 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1981 to June 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at hearings before a Decision Review Officer (DRO) at the RO in May 2013 and before a Veterans Law Judge (VLJ) in February 2017. As to the latter (videoconference) hearing, it was held before a VLJ who is no longer employed at the Board. In a January 2022 letter, the Board offered the Veteran the opportunity for a new hearing before a VLJ who would decide his (legacy) claim, but the Veteran responded in January 2022 that he did not desire another Board hearing. (Transcripts of both hearings are of record.) A July 2017 Board decision, in part, denied the Veteran service connection for a low back disability, and he appealed the decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a November 2018 Memorandum Decision, the CAVC set aside that portion of the Board's decision denying service connection for a low back disability and remanded the matter to the Board for additional action. In July 2019, the Board remanded the case to the RO (i.e., the agency of original jurisdiction, or AOJ) for consideration of new evidence in the first instance. The RO continued to deny the claim, and the case was returned to the Board. A February 2021 Board decision denied the Veteran service connection for a low back disability, and he appealed the decision to the CAVC. An October 2021 CAVC Order granted an October 2021 Joint Motion for Remand (JMR) of the parties the appellant and the legal representative of the VA (i.e., the Office of the General Counsel), thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the JMR. Entitlement to service connection for a low back disability The parties to the October 2021 JMR agreed that the November 2019 VA (fee basis) opinion upon which the Board had relied in its February 2021 decision lacked an adequate rationale for its unfavorable conclusion. Specifically, in order to return an opinion containing a positive nexus (i.e., a finding of a link between the Veteran's current disability and his period of service), the 2019 examiner seemed to require that there be evidence of an in-service "condition." Further, she did not explain why the lack of a complaint of a back condition at the time of the separation physical examination was relevant to whether the Veteran's current low back disability was causally related to service. In light of the deficient opinion, the parties agreed that the Board must obtain a new VA medical nexus opinion. The matter is REMANDED for the following action: Forward the claims file to a physician with clinical experience in spinal disabilities, if possible, for review and an opinion concerning the nature and likely etiology of the Veteran's diagnosed low back disabilities. If the consulting provider deems that further examination of the Veteran is necessary to formulate the opinion, it should be arranged. With regard to each diagnosed low back disability, the examiner is asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is related to disease or injury during the Veteran's period of service from June 1981 to June 1984. In providing the requested opinion, the examiner should address (1) the Veteran's lay statements and hearing testimony to the effect that he initially sustained a low back injury while lifting/putting up antennas in AIT in 1981, that back pain and soreness came and went but he did not seek medical treatment, that his symptoms would persist for only a few days at a time because he was in good physical shape, and that this pattern of symptoms continued after service but worsened, particularly from 1998; and (2) the lay statements from two servicemen, who assert that they served with the Veteran and recall him having lower back pain on several occasions but was not the type to seek medical assistance. If there is a medical reason to accept or reject that his reported symptoms in service and thereafter represented the onset of his current disability, this should be noted and explained in detail. Stated another way, do the Veteran's reports about his symptoms comport with how the currently diagnosed disability is known to develop, or are his reports generally implausible or inconsistent with medical knowledge? The examiner must furnish a complete explanation of rationale for all opinions, citing to relevant evidence and supporting factual data and medical literature, as appropriate To that end, the examiner should note that the absence of documentation of complaints or treatment of a low back disability during or after service cannot be the only basis for rejecting a possible nexus to service, but that identifying a[n alternate] likely etiology (beyond any assertion that there was an absence of documentation of the disability in or after service) may overcome this. The examiner is advised that the lack of documentation of a low back disability during service is not automatically fatal to the claim. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.