Citation Nr: 22013889 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 12-28 924 DATE: March 10, 2022 REMANDED Service connection for a back disability. REASONS FOR REMAND The Veteran, who is the appellant, had active service from March 1976 to February 1979. This matter is on appeal from a January 2011 rating decision. In a February 2021 decision, the Board denied service connection for a back disability. The Veteran appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims (Court or CAVC). The Board's decision was vacated pursuant to a Joint Motion for Remand (Joint Motion or JMR) on the bases that the Board did not ensure that that the Agency of Original Jurisdiction (AOJ) substantially complied with the June 2019 remand directives. Specifically, the Joint Motion found that the Board should not have relied upon the December 2019 VA medical opinion because the VA examiner did not assume as a fact there was back pain during service that was unreported at the time but had been instructed to do so in the June 2019 Board remand. The Joint Motion also agreed that the December 2019 VA examiner only listed other evidence (i.e., 1991 and 2001 post-service work-related back injuries, May 2011 private medical opinion, and the lay statements from the appellant's former spouse and brothers) but did not address its significance, as instructed to do in the June 2019 Board remand. The November 2021 Joint Motion directs the Board to obtain a new medical opinion that substantially complies with the June 2019 remand directives. In consideration of the November 2021 Joint Motion, a remand is warranted for a VA medical opinion that addresses the significance of the 1991 and 2001 post-service work-related back injuries, the May 2011 private medical opinion from Dr. J.H., and lay statements from the Veteran's former spouse and brothers reporting that they recalled him experiencing back pain shortly after service separation. The Board is not able to comply with the portion of the Joint Remand that directs an addendum opinion that assumes unreported back pain during service because the Board does not find the account of back pain in service to be credible; therefore, compliance with the JMR on this point would create an implicit finding of credibility of symptoms of back pain during service, contrary to the weight of the lay and medical evidence of record. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis but cannot reject the opinion solely because the history was from the veteran). At the time of the June 2019 Board remand, the Board had not assessed the credibility of the Veteran's lay account of in-service back pain; however, the Board has since determined that the account of in-service back pain is not credible, so is not a "fact" that should be assumed by a VA examiner (who does not decide the facts of a case the VA adjudicator/Board makes factual findings of credibility and whether an event occurred in service). The service treatment records (STRs), which are complete, are absent of any report, complaint, findings, diagnosis, or treatment for back problems. At service separation, the spine and musculoskeletal system were clinically normal, and the Veteran checked "no" when asked if he then had or had ever had recurrent back pain. See January 1979 service examination report and service Report of Medical History; see also February 1979 service statement of medical condition (noting that there had been no change in medical condition since the separation examination). The STRs, which are complete, reflect that the Veteran was treated for orthopedic problems (i.e., right foot and leg symptoms) on several occasions during service without mention of a back injury or back symptomatology or complaints at those times, the spine was clinically evaluated at service separation and determined to be normal, and the Veteran was specifically asked if he had recurrent back pain at service separation and he denied having any such symptoms. As such, a back disability, to include any injury, disease, and chronic symptoms related thereto, is a condition that would have ordinarily been recorded during service, if it had in fact been present during service; therefore, the lay and medical evidence generated contemporaneous to service showing no back injury, disease, or symptoms during service is likely to reflect accurately the Veteran's physical condition during service, is of significant probative value, and weighs against a finding of a back injury, disease, or symptoms during service, or chronic symptoms of lumbar degenerative arthritis during service. Additionally, there was no mention of a prior in-service back injury or back symptoms when the Veteran received treatment for back problems in 1991 or 2001 after (post-service) work-related back injuries. The reported history during back treatment that makes no mention of an in-service back injury or symptoms or continuous post-service symptoms since service is of high probative value because the history was being presented by the Veteran, who would be motivated to provide an accurate medical history to receive efficacious medical treatment. The lay and medical evidence contemporaneous to service showing no actual back injury or back symptoms, and the post-service lay and medical evidence showing no back symptoms until after various post-service work-related back injuries, is deemed more credible and outweighs the more recent lay account of a back injury and back symptoms during service and back symptoms since service. The assertion of back symptoms in and since service was first made many years after service separation when the memory is less reliable, was made for compensation purposes rather than treatment, and is inconsistent with the weight of the lay and medical evidence contemporaneous to service and for many years after service separation. Thus, the recent lay accounts of in-service back injury and symptoms are not deemed credible. The determination as to whether evidence is credible is a finding of fact for the Board to decide, as are the factual questions of in-service injury and symptoms such as pain. See Elkins v. Gober, 229 F. 3d 1369, 1377 (2000) (emphasizing that fact finding in veteran's cases is to be done by the Board). In this case, the Board has weighed the Veteran's lay account of in-service back injury and back pain against other lay and medical evidence of record showing no back injury, disease, or symptoms until many years after service and then after post-service back injuries, and has found the lay account of in-service back injury and back pain to lack credibility, so it is of no probative value. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) ("Credibility is determined by the fact finder . . . Determination of credibility is a function for the BVA."); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In a December 2020 letter, the Board advised the Veteran that the case had previously been remanded for a VA medical opinion that addressed whether the current back disability was related to service but had not first assessed the credibility of the statement that the Veteran experienced back pain and back injury during service with continuing symptoms since service. The Board informed him that, after reviewing the relevant lay and medical evidence of record, the Board planned to find that there was no back injury or back symptoms during service and no continuous back symptoms since service. The Board asked the Veteran to submit all evidence and argument showing a back injury and back symptoms during service and since service within 30 days of the December 2020 letter. In January 2021, he responded to the letter with additional argument. Thus, the Board is unable to strictly comply with the portion of the Joint Motion that directs the Board to obtain a VA medical opinion that asks the VA examiner to assume an inaccurate fact, that the Veteran reported back pain during service, because the Board has, in its role as fact finder, determined that the account of back symptoms during service is not credible. The matter is REMANDED for the following action: Obtain an addendum opinion from a clinician regarding whether the back disability is at least as likely as not causally or etiologically related to service. When providing the medical opinion, the VA examiner should discuss the significance of the 1991 and 2001 post-service work-related back injuries, the May 2011 private medical opinion from Dr. J.H., and lay statements from the Veteran's former spouse (dated February 2011) and brothers (dated February 2011 and March 2011) reporting that they recalled the Veteran experiencing back pain shortly after service separation. J. PARKER Veterans Law Judge Board of Veterans' Appeals L. HOWELL Veterans Law Judge Board of Veterans' Appeals K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.