Citation Nr: 22015689 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-28 794 DATE: March 18, 2022 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to July 1991 and from February 2003 to July 2003. He had additional service in the United States Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran's representative was unavailable to appear at the hearing, but the Veteran elected to proceed with the hearing without a representative present. A transcript of the hearing has been associated with the record. In a May 2013 rating decision, the RO granted service connection for left and right lower extremity paresthesias and assigned separate 10 percent evaluations, effective from March 29, 2012. The Veteran submitted a notice of disagreement (NOD) in which he appealed the evaluations assigned. Thereafter, the RO issued a statement of the case (SOC) pertaining to those issues and the issue of entitlement to service connection for a low back disorder in April 2017. However, the Veteran limited his May 2017 substantive appeal to the issue of entitlement to service connection for a low back disorder. Therefore, the issues of entitlement to increased ratings for bilateral lower extremity compression/pressure neuropathy (previously evaluated as bilateral lower extremity paresthesia) are not currently before the Board. At the time of the November 2021 hearing, the Veteran also confirmed that he was only pursuing an appeal for the issue of entitlement to service connection for a back disorder. Upon review, the Board finds that additional development is needed prior to adjudication of the issue on appeal. The Veteran was afforded a VA examination in February 2013 in connection with his claim. The VA examiner opined that it was less likely than not that the Veteran's low back disorder, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event, injury, or illness. Rather, he opined that it was more likely than not that his low back disorder was aggravated by a long history physical work as a corrections officer, training canines, and the driving, lifting, and walking that is required at his current job. Another VA medical opinion was obtained in April 2017. The VA examiner opined that it was less likely than not that the Veteran's low back disorder had its onset during military service and that it was less likely than not that the Veteran's complaint of low back pain, which was clearly and unmistakably present prior to service, had it onset during military service and it was less likely than not that the back pain was aggravated beyond its natural progression by military service. Nevertheless, the Board notes that the presumption of soundness applies in this case, and the VA examiners did not provide complete explanations for the conclusion that the Veteran's back disorder preexisted service. The February 2013 VA examiner did note that a pre-enlistment evaluated in 1986 showed an evaluation for mid-low back pain with mild left scoliosis. The April 2017 VA examiner also noted that the Veteran reported a history of recurrent back pain during his enlistment examination and that the Veteran was evaluated by orthopedics at that time for mild scoliosis. However, the April 2017 VA examination also observed that the orthopedist found that, given the normal neurologic examination, the Veteran essentially had mechanical low back pain likely resulting from positioning requirements imposed by his work in a laundry area. Moreover, if there was a disorder that clearly and unmistakably existed prior to service, the legal standard is then whether there is clear and unmistakable evidence showing that the preexisting disorder was not aggravated by service, as opposed to whether it was at least as likely as not that there was aggravation. For these reasons, the Board finds that an additional VA medical opinion is needed. In addition, during the November 2021 hearing, the Veteran submitted additional evidence that has not been considered, including a March 2021 magnetic resonance imaging (MRI) study. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his back that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran has a current lumbar spine disorder that clearly and unmistakably preexisted his military service. (The term "clear and unmistakable" means that the evidence is undebatable.) If so, he or she should state whether there was an increase in the severity of the preexisting disorder during this period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that there is a back disorder that did not clearly and unmistakably preexist the Veteran's service, he or she should provide an opinion as to whether it is at least as likely as not that the disorder manifested in service or is otherwise is causally or etiologically related to his military service, to include any injury and symptomatology therein. In providing this opinion, the examiner should specifically consider the Veteran's November 2021 hearing testimony and written statement. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should ensure compliance with the foregoing directive and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.