Citation Nr: 22013113 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-29 245 DATE: March 8, 2022 REMANDED Entitlement to service connection for a back disability to include lumbar strain also referred to as bulging disc, L5-S1 with right hip and leg pain, is remanded. REASONS FOR REMAND The Veteran had active service from October 1968 to August 1972. This matter stems from an October 2014 rating decision and comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO). The Board initially notes that evidence in the record shows the Veteran has been diagnosed with multiple back conditions and residual disabilities related to his back condition; therefore, the Board will broadly construe the issue as a claim for service connection for a back disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Board also notes that the Veteran initially requested a hearing on the issue on appeal but in correspondence received in January 2020, the Veteran's representative stated the Veteran withdrew his request. 38 C.F.R. § 20.604(e). Finally, the Board notes that the Veteran's attorney submitted correspondence in December 2020 stating he no longer represented the Veteran. However, good cause for withdrawing services as the Veteran's representative was not provided, and there is no indication that the Veteran was provided a copy of the withdrawal. Moreover, the Veteran has not submitted correspondence terminating the Veteran's attorney as his representative or an updated VA Form 21-22. Therefore, the Board denies the attorney's request to withdraw as the Veteran's representative at this time. The Board highlights for the Veteran's attorney that the complete requirements for a motion to withdraw services as the Veteran's representative are outlined in 38 C.F.R. § 20.6. Entitlement to service connection for a back disability to include lumbar strain also referred to as bulging disc, L5-S1 with right hip and leg pain. The Veteran asserts that his back disability is related to an injury incurred during active duty service. The Veteran stated that he did not agree with the fact that the RO denied service connection based on the fact that there was no documented treatment for his back other than the initial injury in his service treatment records. The Veteran explained that although he did not seek treatment through the military hospital or at the VA, he has had numerous ongoing problems with his back and decided to treat himself with home remedies. He further stated that his back issues were exacerbated during the summer of 2014 when he experienced unbelievable pain and was admitted into the hospital for eight days. The Veteran further noted that he has received six injections to help relieve the constant pain in his back. See Notice of Disagreement Received in September 2015. Moreover, the Veteran explained that when he was initially stationed in Germany at a small base, there were only 90 personnel with no doctor, only a medic on site. He stated that there was no way to get an X-ray of his back, or a doctor's opinion at that time. The Veteran re-iterated that from the time he initially injured his back in service to the present time, he has had ongoing continuous issues with his back. He stated that another reason why he did not seek treatment in the military is because he wanted to focus on advancing in his military career. The Veteran further stated that he knew that if he went to the hospital for his back condition while on active duty, there was a possibility that he could be discharged because of his condition and that was not a chance that he was willing to take, therefore, he endured the constant pain. See Form 9 Received May 2017. The Board notes that the Veteran's service treatment records indicate that he injured his back during active duty service. Specifically, a treatment note dated June 1979 states that the Veteran experienced pain in his lower back with an inability to move after he pulled something in his back on Saturday while playing softball and he continued to play on the day that the record was written despite increased discomfort and later experienced sudden acute pain with an inability to move. The Board notes that another June 1979 treatment record written two days after the initial recorded back injury states that the Veteran's back felt better, but he still experienced a little discomfort. See service treatment records received May 2014. Numerous post service treatment notes indicate that the Veteran has reported chronic lower back pain that radiates into his lower extremity and was hospitalized in September 2014 to treat the pain. See CAPRI treatment records received in September 2014. A September 2014 treatment record states that the Veteran has chronic low back pain radiates into his right lower extremity it appears he had an exacerbation of back pain radiating into his left lower extremity and has a left foraminal disc herniation at L2-3. Id. A lumbar MRI Impression from September 2014 revealed interval development of a new left foraminal disc protrusion at L2-L3 resulting in severe left neural foraminal narrowing and impingement on the left exiting nerve root. Id. The Veteran's back disability was evaluated in May 2015. The VA examiner noted the Veteran was diagnosed with herniated lumbar disc in 2014, lumbar strain in 2006, and radiculopathy of the right lower extremity in 2015. The VA examiner checked the box stating that the lumbar strain back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, in the rationale section, the examiner stated that it is more likely than not that one reported incident of lumbar strain during military service in excess of 30 years ago is causing the Veteran's current lumbar condition. The examiner furthermore stated that the records are silent for other complaints of back pain during military service, only post service treatment records. Additionally, the examiner stated that the Veteran was able to function for nearly 20 years post discharge without back pain treatment. The examiner further stated that his interval occupational history is not known and this may have been a contributing factor. See C& P Examination Received July 2015. The Board finds the May 2015 VA opinion inadequate for decision-making purposes. First, two directly conflicting opinions are offered by the May 2015 VA examiner, one positive and the other negative. The Board cannot substitute its own rationale for medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). A medical examiner must clarify in writing what their opinion is based on the record and that opinion should be consistent with the rationale provided. Second, the May 2015 VA examiner incorrectly relied on an absence of complaints of back pain after the initial in-service back injury as the primary basis for denying the Veteran's claim, without consideration of the Veteran's statements that he has had ongoing back pain since the in-service injury and found ways to self-treat the condition and neglected reporting the ongoing pain to avoid interference with his advancement in the military. The May 2015 examiner is inadequate because the Veteran relied primarily on the absence of evidence in service in formulating the negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Third, the Board also finds the May 2015 examiner drew an impermissible inference that because the Veteran's interval occupational history is not known, it may have been a contributing factor for causing his back disability. Since the Veteran's interval occupational history is not known, the examiner is acting beyond the scope of the evidence provided in opining that the Veteran's work history in some way could have contributed to his current back disability. As the May 2015 VA opinion is the only medical opinion of record and contains a conflicting opinion and inadequate rationale/analysis, this matter is hereby remanded so that an adequate examination can be provided. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner other than the examiner who provided the May 2015 opinion for the Veteran's lumbar strain back disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All findings should be reported in detail. The examiner should address the following: (a.) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current back disability had its onset in service or is otherwise related to service. In rendering the medical opinion the examiner must consider and address (1) the June 1979 service treatment records that state that while playing softball, the Veteran pulled something in his back and subsequently experienced pain in his lower back with an inability to move; (2) the Veteran's assertions that he experienced ongoing back pain since the initial in-service injury, but failed to report it because there was not a doctor to report it to and he did not want the reporting of his injury to interfere with advancement in his military career (3) the September 2014 hospital treatment records and MRI records which indicate that the Veteran received ongoing treatment related to his back injuries. See CAPRI treatment records Received September 2014. In providing this and any other opinions, the examiner is reminded that the Veteran is competent to report continuous symptoms that he experienced during and since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all opinions offered shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.