Citation Nr: 22015945 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 14-23 790 DATE: March 20, 2022 REMANDED Entitlement to service connection for a lumbar disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from November 1965 to November 1967. He received the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board video hearing in July 2018; a transcript is of record. The Board remanded the above issue in September 2018 and 2021. These remands also included the issue of entitlement to service connection for a groin disorder, to include pain and urinary tract infections. Subsequently, in a January 2022 rating decision, the RO granted the Veteran's claim for service connection for urinary tract infections. As this grant represents a full grant of the benefits sought, that issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Additionally, the March 2022 supplemental SOC (SSOC) addressed the claim for service connection for a back disability, which is on appeal. However, the March 2022 SSOC also addressed a claim for service connection for gout, which is not on appeal. The gout issue was not the subject of the Board's September 2021 remand. While the March 2022 SSOC addressed the claim of service connection for gout, that claim is not on appeal. See Hamilton v. Brown, 39 F.3d 1574, 1584 (1994) (noting that a SSOC, even when raising new issues, is an updated statement of the Agency's position and is not an initial determination). Entitlement to service connection for a lumbar disability is remanded. The Veteran asserts service connection for a back disability, to include as secondary to his service-connected disabilities. The Veteran has diagnoses of degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome as reported at the January 2022 examination. As such, the first element of service connection is met. The Veteran testified at the Board hearing regarding his disability. He believed that it was due to carry heavy objects, to include an 81-millimeter motor that weighed 125 pounds. The Board finds the Veteran competent to describe his experiences in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board previously found the May 2021 and June 2021 negative nexus opinions to be inadequate. An additional opinion was requested in September 2021. The January 2022 examiner also provided a negative nexus opinion. However, while the Veteran's heavy lifting in service was mentioned, it was not adequately discussed in the rationale portion of providing a negative nexus opinion. The examiner again relied on the absence of medical evidence showing recurrence or chronicity. As such, the Board finds this opinion to have the same rationale problems as the prior nexus opinions. Therefore, an addendum or additional examination is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, obtain an addendum opinion or schedule the Veteran for an examination for his lumbar disabilities if necessary. The claims file is to be made available to the examiner and reviewed in conjunction with the examination. --Then, address whether: (a.) It is at least as likely as not (probability of approximately 50 percent) that the Veteran's current lumbar disabilities are related to an in-service injury, event, or disease, to include repeatedly lifting/carrying heavy equipment. See 7/10/2018, Hearing Testimony. (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The Board finds the Veteran competent and credible to report lifting heavy equipment during service. The Veteran's statements are to be considered in rendering an opinion. The examiner must provide rationale that addresses the Veteran's heavy lifting during service. Mentioning heavy lifting without adequate discussion is insufficient for the Board to address the Veteran's claim. Additionally, the examiner may not solely rely on the absence of continuous medical care to provide a negative nexus opinion as the Board has found him to be competent and credible.** The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page) If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.