Citation Nr: 22011464 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 14-32 254A DATE: March 1, 2022 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the Board at an April 2018 regional office hearing. A transcript has been associated with the claims file. Most recently, the Veteran's appeal was remanded for a new medical opinion, to afford specific consideration to the Veteran's contention that his back pain (which he contends he has experienced continuously since service) began as a result of an in-service fall, sustained while playing basketball. The examiner was asked to consider whether the nature of the Veteran's disability was consistent from a medical perspective with the narrative presented by the Veteran. The Board sincerely regrets another remand in this matter, but as a result of inconsistency with the Veteran's VA treatment records, it is necessary to obtain an additional medical opinion, so that all consideration may be afforded to the Veteran's contentions. Specifically, the examiner who considered the Veteran's claim in August 2021 and December 2021 premised her opinion on a lack of evidence of back problems between 1979 and 2013. See August 2021 Examination Report ("According to medical record ... and VA relevant evidence this veteran had developed IVDS, and lumbar DDD, mild in 2013 ... more than 30 years after service."); see also December 2021 Addendum ("It is acknowledged the Veteran reports injuring his back during a fall playing basketball in 1979 with continued back issue since. However, there is no evidence to support this.") In stated that there was a lack of evidence of back problems between 1979 and 2013, the examiner appears to overlook or fail to address pertinent treatment records identifying back problems as early as 1986. Indeed, VA treatment records from January 1986 show that the Veteran sought treatment for "severe back pain" and "has had problems in [the] past" with his back pain. The Veteran stated that "this has happened before every time he sleeps on a too soft mattress" and that "he normally sleeps on the floor and it helps, but it didn't this time." The VA treatment records note that the Veteran's back pain was most concentrated to the side of the midline in his lower thoracic lumbar area. The January 1986 VA treatment records also noted marked paraspinous spasms. The Board also notes a July 1987 VA treatment record referencing back pain (in connection with concerns about a kidney problem), which the Veteran had been experiencing for approximately one week, characterized by right flank pain greater than left flank pain. Additionally, January 2012 VA treatment records note that the Veteran was taking ibuprofen for his back pain. Also of note, December 2018 VA Treatment records show that the Veteran sought treatment for lower back pain he reported he had been experiencing off and on since 1986, and which had been worsening over the past two months. In light of the Veteran's VA records showing treatment for back pain as early as 1986, a remand is, therefore, necessary to again consider the Veteran's contention that his back pain (which he contends he has experienced continuously since service) began as a result of an in-service fall, sustained while playing basketball. The matters are REMANDED for the following action: 1. Invite the Veteran to submit lay statements from himself and/or other individuals who have first-hand knowledge of when his claimed disability began and the symptoms he experienced. Provide him a reasonable period of time to submit this evidence. 2. Obtain a medical opinion from an individual who has not previously examined the Veteran's back, or provided a medical opinion addressing the etiology of the Veteran's back disability. Following a review of the record, the opinion provider should address the following questions: Is it at least as likely as not (approximately 50 percent probability) that any currently-diagnosed low back disability present since April 2013 had its onset during, or is otherwise related to, his active duty service, to specifically include a fall injury to his back while playing basketball in 1979? For the purposes of this opinion alone, the opinion provider must assume as true that the fall injury occurred. In offering any opinion, the examiner must acknowledge and consider: (a.) the Veteran's lay statements regarding in-service incurrence and continuous symptoms since service. (b.) the Veteran's VA treatment records from January 1986, showing that the Veteran sought treatment for "severe back pain" and "has had problems in [the] past" with his back pain; recording the Veteran's statement that "this has happened before every time he sleeps on a too soft mattress" and that "he normally sleeps on the floor and it helps, but it didn't this time"; and noting that the Veteran's back pain was most concentrated to the side of the midline in his lower thoracic lumbar area, with marked paraspinous spasms. (c.) the Veteran's VA treatment records from July 1987, referencing back pain (in connection with concerns about a kidney problem), which the Veteran had been experiencing for approximately one week, characterized by right flank pain greater than left flank pain. A complete rationale must be provided for any opinion provided. Significantly, the opinion must not be based solely on the lack of documented evidence of an in-service injury and/or continuity of care following service. It would be particularly helpful if the opinion provider could discuss whether the nature of the Veteran's current disability is consistent, from a medical perspective, with the narrative presented by the Veteran regarding the nature of injury. If so or if not, please explain why that is the case. If in the opinion of the reviewer responses cannot be provided without an in-person or virtual examination or interview, such should be scheduled. (Continued on Next Page) 2. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.