Citation Nr: 22011609 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 17-53 841 DATE: March 1, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1979, and January 1981 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in May 2020. The case has been returned to the Board at this time for further appellate review. The Board notes that, subsequent to the May 2020 remand, the AOJ granted service connection for left eye uveitic glaucoma with mature cataract and right eye nuclear sclerotic cataract in separate March 2021 rating decisions. As those decisions constitute a full grant of the benefits sought on appeal, the issue of entitlement to service connection for an eye condition is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997) (ratings and effective dates are downstream issues, which must be separately appealed). Entitlement to service connection for a back disability is remanded. Pursuant to the May 2020 Board remand, the Veteran was provided a VA back conditions examination in June 2020 which the Board finds to be inadequate for the following reasons. First, the June 2020 VA examiner noted that they did not reject the Veteran's reported history of low back pain, stating that any individual would have difficulty with any certainty of recalling every event, to include an occupational history of varying types of physical labor including being a machinist over a period of 30 years, that could lead to chronic degenerative changes of a lumbosacral spine. However, the VA examiner relied on the fact that there are no complaints or diagnosis of low back pain for a period of over 30 years in providing a negative nexus opinion. Thus, despite what the VA examiner stated, it appears as though they improperly rejected the Veteran's contentions that he experienced lower back pain since his in-service back incident based on the fact that they are not recorded in contemporaneous medical treatment records. Second, the VA examiner relied on the fact that the Veteran was exercising by walking five miles a day as recently as October 2013 without complaints of low back pain to support their negative nexus opinion. Without further explanation, it is unclear to the Board how the Veteran walking for exercise supports a finding that his back condition is less likely than not related to his service, particularly since (1) an August 2014 VA treatment record reflects that the Veteran was walking three days a week, but a month later, the October 2014 VA back conditions examination reflects that the Veteran was diagnosed with degenerative arthritis of the spine resulting in painful, limited range of motion, and (2) an August 2017 VA treatment record reflects that the Veteran was walking daily for exercise. In other words, without further explanation, it appears as though the Veteran's ability to exercise by walking is not indicative of whether or not the Veteran was experiencing back pain with limitation of motion and whether or not his back disability is related to his service. For these reasons, the Board finds that remand for a new VA opinion is warranted. This matter is REMANDED for the following action: Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether the Veteran's back disability is related to his military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (at least an approximate balance of the positive and negative evidence) that the Veteran's back disability began in or is otherwise caused by the Veteran's active service. In doing so, the examiner should address the Veteran's October 1977 service treatment records which establish that he experienced a back injury in service. (Continued on the next page) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.