Citation Nr: 22015089
Decision Date: 03/16/22	Archive Date: 03/16/22

DOCKET NO. 16-01 537
DATE: March 16, 2022

REMANDED

Entitlement to service connection for thoracolumbar spine disability is remanded.

Entitlement to temporary total evaluation due to back surgery is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1975 to September 1979.

The Board denied both claims in an October 2020 decision.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).  In October 2021, the Court issued an order granting a September 2021 Joint Motion for Remand (JMR), remanding the claim to the Board for further action.

1. Entitlement to service connection for thoracolumbar spine disability is remanded.

In compliance with the October 2021 Court's order and the JMR, the Board is remanding to obtain an additional medical opinion.

As noted in the JMR, the Board considered a January 2020 VA opinion on whether the Veteran has a current back disability that is related to service.  The examiner considered lay statements from the Veteran and found his reporting regarding hardships in service to be truthful.  However, "the VA examiner dismissed Appellant's lay reports because there was no contemporaneous medical evidence to corroborate them."  See JMR, page 3.  "[I]n measuring the credibility of layperson testimony the lack of contemporaneous medical evidence is also relevant, however, the mere lack of such evidence may not be the sole basis for discrediting the testimony."  See JMR, page 3 (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006)).

"As such, the January 2020 VA opinion is inadequate.  On remand, the Board must obtain a new or addendum VA opinion that adequately considers Appellant's lay reports."  See JMR, page 4.  Accordingly, the Board will remand for and addendum or new medical opinion.

2. Entitlement to temporary total evaluation due to back surgery is remanded.

As noted in the JMR, the parties agreed that the issue of entitlement to a temporary total disability rating due to back surgery is inextricably intertwined with the thoracolumbar spine disability claim.  See JMR, page 6.  Therefore, the issue of must also be remanded.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his claimed disability by the January 2020 examiner, or other appropriate medical professional.  The examiner must review the claims file.

The examiner is asked to provide a response to the following:

Identify each of the Veteran's current thoracolumbar spine disabilities, including whether the Veteran has degenerative disc disease.  Diagnostic imaging should be performed if necessary to adequately identify current disabilities.

For each identified disability, is it at least as likely as not related to service, including the Veteran's reported in-service injuries?  

If the examiner identifies arthritis, including degenerative disc disease, as a current disability, is it at least as likely as not that it (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 

Provide rationales to support the opinions, including addressing the Veteran's lay statements.  The examiner should accept as true that the Veteran injured his back in service.

 

 

David Gratz

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gregory T. Shannon, 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.