Citation Nr: 22013586 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-00 659 DATE: March 10, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to May 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this issue for additional development in June 2021 and November 2021. The case has returned to the Board for further appellate review and has been reassigned to the undersigned. The Board notes that the Veteran withdrew his request for a Board hearing in January 2021 correspondence. Entitlement to service connection for a back disability Although the Board sincerely regrets the additional delay, it is necessary to again remand this issue for further development in order to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Pursuant to the November 2021 Board remand directive, the RO obtained two different December 2021 VA etiology opinions from two different examiners, one dated December 17, 2021 and the other December 24, 2021. The December 17, 2021 opinion found that the Veteran's back disability was less likely as not due to service within 1 year of separation. The examiner determined that the Veteran's in-service injury was acute in nature because there was no record of any back pain until 2009, 20 years after the initial injury. The December 24, 2021 opinion found that the Veteran's back disability less likely than not manifested to a compensable degree within 1 year of separation from service. He also found that the Veteran's in-service injury was acute in nature, as there were no additional records to show chronicity within the service treatment record or within the immediate post-separation period. The Board finds that both opinions are inadequate because they improperly dismissed the Veteran's lay statements about the origin and consistency of his symptoms because they were not reflected in the contemporaneous medical record. Neither make any clear mention of the Veteran's statements or their consistency with his later diagnosis. The discussion provided by both examiners is instead focused the service treatment record and the medical record within a year of separation. The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and the time of its onset. See Layno v. Brown, 6 Vet. App. 465, 470. As both December 2021 opinions dismissed these competent lay statements solely due to the lack of contemporaneous medical records, they are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Remand is therefore required to obtain an adequate nexus opinion. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to provide an opinion on this issue, to determine the etiology of any current back disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current back disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. J. Sandler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.