Citation Nr: 22015367 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-22 826 DATE: March 17, 2022 REMANDED Entitlement to service connection for a lower back condition (also claimed as arthritis) is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Navy from October 1963 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) from an appeal of a December 2013 rating decision of the Department of Veterans Affairs (VA). This matter was first before the Board in September 2018, when it was remanded to afford the Veteran a VA examination. The matter was before the Board again in March 2021, when it was denied. The Veteran appealed to the United States Court of Veterans Claims (Court), and the parties entered into a joint motion for remand (JMR) in November 2021. The JMR concluded that the March 2021 Board denial lacked adequate reasons and bases for its denial, specifically erring by not adequately explaining why the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for a lower back condition (also claimed as arthritis) is remanded. The Veteran asserts his lower back condition, also claimed as arthritis, is due to a fall he suffered while serving aboard a Navy ship, landing on his tailbone. See April 2016 Form 9. The Veteran has a current diagnosis of lumbar degenerative disc disease. See October 2019 VA back examination. Imaging studies have documented that arthritis is present. See id. In the September 2018 Board remand, the remand directives did not ask the examiner to opine on the question of whether the Veteran's lower back condition began during service, manifested to a compensable degree within one year of service, or was noted during service with a continuity of symptomatology since service. See September 2018 Board remand. Accordingly, no examiner has opined on that issue. Nonetheless, the March 2021 Board denial concluded that the Veteran's degenerative disc disease was not chronic in service or had continued since service. See March 2021 Board denial. The Court concluded that the Board did not explain whether the evidence showed a relationship between the Veteran's arthritis and his post-service symptomatology. See November 2021 JMR. As this issue has not been addressed by a VA examiner, a remand is necessary for a medical opinion. Additionally, the October 2019 VA back examination is inadequate for the Board's purposes. First, the VA examiner did not address the Veteran's lay testimony regarding his symptomatology since service. Specifically, the Veteran reports intermittent pain in his lower back, usually noticed after physical activities. See October 2019 VA back examination. However, the VA examiner concluded that the Veteran had been "relatively asymptomatic" in recent years and did not account for the symptoms the Veteran did experience. While an examiner may choose not to believe a Veteran's self-reported history, an examiner is not free to disregard the Veteran's reports of symptoms in and since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (Vet. App. 1994); Dalton v. Nicholson, 21 Vet. App. 23 (Vet. App. 2007). The Board may not rely on an opinion that disregards lay evidence that is potentially competent to support the presence of disability, even where the lay evidence is not corroborated by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Second, the October 2019 VA back examination contains statements that, at least on the surface, appear contradictory. Specifically, the examiner stated that the Veteran did not report flare-ups of the thoracolumbar spine. See October 2019 VA back examination. However, the immediately preceding paragraph states: "[the Veteran] had back pain flareups [sic] intermittently through the years..." See id. Having thus concluded that the Veteran did not suffer from flare-ups, the examiner then did not provide an estimate as to whether pain, weakness, fatigability or incoordination limited the Veteran's functional ability during flare-ups. See id. A remand is thus necessary to obtain an opinion that clarifies if the Veteran continues to report flare-ups, and if so, provide an estimate as to the loss of functional ability during the flare-ups. Finally, the previous examiner was asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the Veteran's lower back condition was connected to service. This language found in the previous remands entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e. nearly equal - and does not require the evidence to be in exact equipoise. See id. The matters are REMANDED for the following action: The Decision Review Operations Center (DROC) should schedule the Veteran for a VA examination for his lower back condition. The examiner must review the claims file, including this remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. If the Veteran reports that he experiences flare-ups of his lower back condition, the examiner is asked to provide an estimate of the loss of functional ability during a flare-up. The examiner is asked to provide a response to the following: a. Is the Veteran's lower back condition at least as likely as not (an approximate balance of positive and negative evidence) related to service, including a reported fall from a bunk during service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? b. Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's lower back condition (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.