Citation Nr: 22013593 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-05 620 DATE: March 10, 2022 REMANDED Entitlement to service connection for thoracic muscle strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1985 to December 1989 and from January 2005 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2015 by the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado. In October 2021, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record. Service connection The Veteran seeks service connection for muscle strain of the thoracic spine, which she contends developed as a result of an in-service motor vehicle accident (MVA) in September 1987. In August 2015, the Veteran was afforded a VA back examination. At that time, a diagnosis of thoracic muscle strain was confirmed. The Veteran described the 1987 MVA, and her back symptoms since that time, to include pain, cramping and numbness and tingling in her bilateral hands. The examiner concluded that it was less likely than not that the Veteran's thoracic muscle strain was due to her military service, to include the MVA. As rationale, she explained that after a March 1991 examination, there was no further discussion of, or report of, back symptoms. A pre-deployment questionnaire from March 2005, at the start of her second period of service, showed no medical concerns, and subsequent post-deployment questionnaires from August and October 2006 did not mention such. In addition, there was no mention of any back muscle conditions in any of the Veteran's post-service medical treatment records. The examiner concluded that because there was a lack of consistent medical documentation after the initial notes in 1987 and 1989, regarding the Veteran's back, it was less likely than not that there was a link between the condition and her military service. As for the Veteran's neck, the same examiner concluded that it was less likely than not that any cervical spine condition was due to service. In support of this conclusion, she explained that, like the back, after a 1991 medical history and examination, there was no report of, or treatment for, neck pain until September 2014. The medical diagnosis of muscle and neck strain would not naturally progress ot the osteoarthritis that was seen in an October 2014 neck x-ray. Thus, there was no link to service. At the October 2021 hearing, the Veteran testified that she experienced consistent back pain since the MVA and treated her condition since that time with over-the-counter medications and massages from her husband. She testified that she did not have medical insurance, so she did not seek formal treatment for the condition. The Board finds that further examination is warranted. It notes that the August 2015 examiner based her opinion regarding the Veteran's back, at least in part, on a finding that there were no discussions of, or treatment for, the Veteran's back pain after 1991. The examiner specifically noted that a March 2005 pre-deployment questionnaire showed no reports of back pain. However, the record contains a January 2005 reservist medical processing history form in which the Veteran clearly endorsed experiencing chronic back pain. As the examination is based upon an inaccurate factual premise, it is inadequate to properly adjudicate the claim. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)(when VA provides an examination or obtains an opinion, it must be adequate). In addition, the examiner based her opinion on a lack of any post-service reports of, or treatment for, back pain, without taking into consideration the Veteran's reports of such pain in that time period, which she is competent to report. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an absolute bar to service connection claim); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the August 2015 examiner found that the Veteran did not have a back condition other than the 1987 thoracic muscle strain. However, VA treatment records from April 2020 showing degenerative changes of the spine, and the Veteran's October 2021 testimony regarding her symptomology, suggest the actual presence of a back condition. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement of current disability is satisfied when disability present at any time during the pendency of the claim). For these reasons, a remand is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the etiology of all thoracic spine conditions. The selected examiner is asked to identify all spine conditions present during the appeal period. Then, for each identified condition, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's service, to specifically include a 1987 motor vehicle accident. (Continued on the next page) A detailed rationale should be provided for any opinions expressed. A separate opinion and rationale should be provided for each thoracic spine condition experienced by the Veteran, if possible. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.