Citation Nr: 22013448 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-45 177 DATE: March 9, 2022 ISSUE Entitlement to service connection for a low back disability. REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served in the Army from October 2002 to June 2005 and was discharged honorably. The Veteran served in the U.S. Army from June 2005 to March 2010 and was discharged dishonorably. See February 25, 2013 Correspondence (Administrative Decision). This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO) Philadelphia, PA. In February 2019, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference Board Hearing. A transcript of that hearing is of record At the outset, the Board notes that while it does not preclude the Veteran from claiming benefits, the Veteran's active-duty time for which he was dishonorably discharged cannot be the basis for a finding of an in-service incurrence of a disability. Hence, the Board's discussion below primarily focuses on the Veteran's first tour of duty, October 2002 to June 2005 with respect to his service connection claim for a low back disability. By way of background, this matter was previously remanded by the Board in June 2019 and May 2021 for further development, to include affording the Veteran VA examination (s) to determine the nature and etiology of his low back disability. The matter has returned to the Board for appellate review. For reasons explained below, this matter is remanded for a new VA examination and medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a low back disability is remanded. The Veteran contends he is entitled to service connection because he injured his back in 2003 while carrying 170 to 180-pound boxes containing supplies. The Veteran testified during his February 2019 Video conference Board hearing that he would pick up and deliver boxes as part of his duty as a supply specialist during service. See DD-214 re: MOS. The Veteran testified during his hearing that his back pain has continued since his first tour of duty. See February 27, 2019 Board Hearing transcript pg. 6. During the course of this appeal, the Veteran has been provided VA examinations in April 2013 and December 2019 and August 2021 for his low back disability. Both VA examinations have been found inadequate for purposes of this adjudication. See June 2019 BVA decision, pg. 9; May 2021, BVA decision, pgs. 4-5. Pursuant to the Board's remand, the Veteran was afforded an August 2021 Back Conditions examination (Dated December 5, 2021). In this examination, the Veteran was diagnosed with a lumbosacral strain. See August 9, 2021 Back Conditions examination, pg. 2. The examiner offered an unfavorable nexus opinion towards service. The examiner reasoned that Buddy reports are noted in the records however she was unable to access these actual letters for review. The examiner noted she could not reference the content of these letters (2015). The examiner stated, "in lieu of the fact that she was unsure of how these Buddies were able to obtain be privy to clinical based evidence would raise questions as to how accurate their statements may be." The examiner noted that it was "interesting to note that there is also a Buddy statement recognized for an unrelated health issue (Hypertension) for this Veteran and she finds it interesting regarding how involved "buddies" can be with regards to specific details of another Veteran health issues." The examiner noted the Veteran was discharged in 2010. The examiner noted that the "accuracy of these letters is in question as it had been a 5-year lapse since discharge of Veteran (2010) and letters written in 2015." The examiner noted she "questions the statement that early 2004 approximately, Jan-March "I started to receive medication for my back" was supported accurately by a letter that was written (11 years after the fact") by his Buddies in 2015." The examiner concluded, "therefore, it is my medical opinion that the Veteran has a diagnosis of (a) Lumbosacral strain that was less likely than note incurred in or caused by (the) occurred during service during service." See August 9, 2021, Back Conditions Medical Opinion, pgs. 1-2. A medical examination is adequate if it is (1) based on a correct factual premise; (2) based on the pertinent medical history and examinations; (3) not plagued by ambiguity or inconsistency; and (4) provides sufficient detail to fully inform the Board on its medical question. Monzingo v. Shinseki, 26 Vet. App. 97, 109 (2012). Significantly, the Board noted in its May 2021 remand directive, the examiner must review all pertinent records associated with the claims file in its entirety, including a copy of the Board's remand. See May 2021 BVA decision, pgs. 5-6. Lay assertions While the Board requested the examiner to consider and discuss the Veteran's lay assertions in formulating their opinion, the Board observes that it is not clear the examiner reviewed the Veteran's lay assertions in their entirety, including the December 2015 Buddy statement referenced above. The Board observes the examiner acknowledged Buddy reports in the records. however, the examiner also reported she was unable to access these actual letters for review. The examiner proceeded to state she was unsure how Buddies were able to obtain be privy to clinical based evidence or how accurate their statements may be. See August 9, 2021 Back Conditions Medical Opinion, pg. 2. The Board notes the December 2015 Buddy statement, read in its entirety, includes the assertion from a fellow servicemember that he was a medic assigned to the medical platoon, HNC 1/30 INF. In other words, the Buddy statement provides context for how they may know whether the Veteran received treatment or complained about his back pain during service. See December 2015 Buddy Statement (Receipt Date, December 21, 2015). Hence, the Board observes that the examiner's opinion is based, in part on an inaccurate factual premise, that a fellow servicemember would not be in any position to offer clinical evidence on a Veteran's health condition. See August 9, 2021 Back Conditions Medical Opinion, pg. 2. Additionally, while the VA examiner addressed the Veteran's December 2015 Buddy statement, the examiner does not provide sufficient detail to fully inform the Board on its medical question as to whether the Veteran's lumbar strain is related to any in-service injury, event or disease, including the Veteran's reports of lower back pain during service from performing duties as a supply specialist from October 2002 to June 2005. The Board observes that the August 2021 examiner limited their rationale for an unfavorable negative nexus opinion on the lack of credibility found in the Veteran's December 2015 Buddy statementwhich the examiner was unable to access for review. The Board is reminded, it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); See also, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Hence, for the reasons outlined above, the Board finds that prior to adjudication of this claim, a new VA examination and medical opinion is warranted, preferably from an orthopedist (M.D.) to determine the nature and etiology of this Veteran's low back disability. See also, February 11, 2022, Appellant Brief Presentation, pg. 2. Accordingly, this matter is REMANDED for the following action: 1. After obtaining the necessary authorization from Veteran, ensure that all outstanding VA treatment records and private treatment records are associated with the claims file. 2. Next, schedule the Veteran for a VA Back Conditions examination with an orthopedist (M.D.) to determine the nature and etiology of the Veteran's low back disability. The examiner must review all pertinent records associated with the claims file in its entirety, including a Copy of this remand. *The examiner should note this review in the examination report. Any studies or tests deemed necessary should be performed. The examiner must opine on the following: Whether the Veteran's low back disability at least as likely as not (a) low back disability began during active service, to include as related to an in-service injury, event or disease, including the Veteran's reports of lower back pain during service from performing duties as a supply specialist from October 2002 to June 2005, (b) manifested within one year after discharge from service, or (c) was noted during service with continuity of the same symptomology since service. The physician examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. See February 27, 2019 Board Hearing transcript, pgs. 4-6; See also, December 2015 Buddy Statement, Receipt Date, December 21, 2015. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ must ensure that the required actions have been accomplished to the extent possible in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. 4. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.