Citation Nr: 22013365 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-47 713 DATE: March 9, 2022 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This matter was previously before the Board in November 2018, wherein the Board denied entitlement to service connection for a low back disability. The Veteran appealed the portion of the November 2018 Board decision that denied entitlement to a low back disability to the United States Court of Appeals for Veterans Claims (Court). By way of a September 2019 Joint Motion for Partial Remand (JMPR), the parties agreed that remand was warranted as the Board failed to provide an adequate statement of reasons and bases regarding the denial for service connection for a low back disability. This matter was before the Board again in September 2020 and July 2021. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his low back disability is due to his military service; specifically, he asserts that his condition is due to performing over 11,900 combat sorties during the Vietnam War. The parties to the August 2019 JMPR agreed that the Board properly failed to substantiate its determination that the Veteran did not suffer from a low back disability and failed to address potentially private medical evidence. As such, the matter was vacated and remanded to the Board for additional consideration. The July 2020 Board decision remanded the issue for a VA examination as the Veteran had not been afforded an examination for his low back disability. The Veteran was examined by the VA in March 2021. The July 2021 Board decision remanded the issue as it found that the March 2021 VA opinion was inadequate. Specifically, the Board found that the examiner did not consider or discuss what impact, if any, carrying "approximately 150 pounds" for three years of active duty can have on the Veteran's back. Moreover, the Board stated that the examiner did not consider the Veteran's own statements submitted in September 2012 or his military personnel records, which show that he was awarded the Navy Unit Commendation Record for service aboard the USS MIDWAY while participating in over 11,900 combat sorties during his military service. A new VA examination and addendum medical opinion was obtained in September 2021, pursuant to the July 2021 Board remand instructions. The examiner opined that 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. He reasoned that during service, the report of lumbar strain, was acute only and there is no evidence of chronicity of care and the in-service symptoms are subjective only. The examiner went on to explain that there are surprisingly few service treatment records in the Veteran's record and there is no record of any back complaint or dispensing of analgesics for the same. The examiner stated that given the absence of any sick call presentations for resultant injuries or any other back condition, he must conclude that the symptoms were acute and temporary. The examiner noted that absent complete Workman's Compensation records, the file is silent for continuity of back complaints or treatments in the years post discharge from 1991. It was also documented that in the Workman Compensation Arbiter's report, the physician noted that the Veteran had reported he had an on-the-job-injury in 1980 while working in the post office. The examiner indicated that there is no documentation of the Veteran having a back problem until his motorcycle accident in 2002 and has since had three more motorcycle-related back injuries that have been reported. Additionally, he has had at least three time-loss on-the-job back injuries. The examiner stated that he finds that the Veteran's back disability is more likely than not due to the sum of injuries commencing in 1981 and further aggravated by his years as a firefighter and heavy equipment mechanic and operator. Regarding the Veteran's contention that he was awarded the Navy Unit Commendation Ribbon due to carrying out over 11,900 combat sorties, the examiner stated that a sortie is an aircraft combat mission per his Google research and that the Veteran's award was rewarded not to just him, but all the seamen on board his ship. He stated that he finds this honor is medically irrelevant in this case. The Veteran's representative stated in a February 2022 Correspondence that while the examiner stated there was a lack of STRs in the Veteran's service record, the examiner overlooked the largest and most obvious component of the Veteran's service which was the war in Vietnam, as his service was largely in support of combat. In this regard, the representative stated that the examiner was not tasked with making unsubstantiated inference from the absence of records and attaching that absence to the credibility of the Veteran's in-service complaints. Additionally, the representative argued that the examiner dismissed the Veteran's Navy Unit Combat Ribbon to be "medically irrelevant in this case" and likened it to a "reward" that all 4,500 seamen aboard the USS MIDWAY received but had no value as to what they were individually responsible for. He failed to discuss the Veteran's specific military occupational specialty (MOS) as it relates to an individual combat sortie and then multiply it by 11,900 for each sortie, he was involved in. Here, the Board finds that the September 2021 medical opinion is inadequate based on the arguments presented by the Veteran's representative. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("Once [VA] undertakes the effort to provide an examination when developing a service-connection claim [VA] must provide an adequate one"). An examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in treatment records and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). An addendum opinion is warranted in order for the examiner to consider all the evidence of record, including the Veteran's contention regarding wear and tear on his back due to individual combat sorties. The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Arrange for a VA addendum medical opinion by a VA examiner other than the previous examiners to address the claim for a low back disability. The examiner should have appropriate expertise in musculoskeletal disorders. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a low back disability that had an onset in service; or is otherwise related to military service, including due to strain and physical requirements from lifting heavy reams of paper and from participating in over 11,900 combat sorties during his military service? In offering the above opinions, the examiner must include a discussion of the following evidence: 1) the Veteran's September 2012 statement regarding his lifting of heavy reams of paper up five decks on a ladder, 2) military personal records that document he received the Navy Unit Commendation Ribbon indicating he participated in over 11,900 combat sorties during service, and 3) his MOS of lithographer in relation to support the combat missions during the war in the Republic of Vietnam. If the examiner deems it helpful, he or she should get a clear account from the Veteran of his duties during his combat sorties prior to issuing the medical opinion. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.