Citation Nr: 22016806 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-62 875 DATE: March 23, 2022 REMANDED Entitlement to service connection for a back condition, to include lumbar spine degenerative disc disease and intervertebral disc syndrome involving the left sciatic nerve, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1977 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision issued by a Department of the Veterans Affairs (VA) Regional Office (RO). In November of 2021, the Veteran presented testimonial evidence at a video conference hearing held at his local RO office before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Unfortunately, a remand is warranted in this case as there is currently insufficient evidence of record upon which to base a decision. More specifically, the Veteran was previously afforded a Compensation and Pension examination. However, there does not seem to be an examination report except for an April 2015 radiology interpretation. The accompanying May 2015 opinion does not indicate that the Veteran was examined in person (as the records were reviewed using the Acceptable Clinical Evidence or ACE process), but more importantly, the VA examiner who authored it did not consider the Veteran's lay assertions regarding the in-service hernia which is documented in his service treatment records. As rationale, the examiner stated that "[t]here is not sufficient evidence of a low back condition continuing from active duty service to the present. Lumbar degenerative disc disease is a degenerative process with primary risk factors being age, genetics, wt gain, occupation and history of serious injuries. It is most likely that this degenerative process in the veteran is due to a combination of these risk factors." However, service connection based on continuity of symptomology is only one theory of entitlement and does not negate the possibility of it being warranted on some other basis. In that regard, this examiner stated as a part of the record review that "lumbar spine DDD and IVDS diagnosed in 1977 [which could be in a period of active duty service]" but concluded that "there is not sufficient evidence in the available record to indicate that there is a 50 percent likelihood that the veteran's lumbar spine DDD and IVDS was incurred during or caused by active duty service". The Board finds this to be internally inconsistent and clarification should be obtained on remand. In addition, while the examiner mentioned general risk factors, there was no reference made to how any of these factors were applicable to the circumstances of this particular case. Similarly, the two opinions authored at the request of the Veteran by a VA treating physician also provide an insufficient basis for decision-making. The most recent opinion in October of 2021 simply states that "he reports his back pain started when he was pushed down the stairs during his service". However, the examiner did not provide an actual nexus opinion. A January 2017 opinion authored by the same examiner offered similarly phrased statements but also states "I believe that the heavy lifting may be related to the development of his low back pain, particularly his sciatica as lifting is known to cause and worsen this condition.". Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to decide a claim. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (finding that a medical opinion expressed in terms of "may" also implies "may or may not"). Thus, the probative value of this opinion is further negated. Lastly, the Board observes that the Veteran is in receipt of service connection for a hernia condition. In lieu of the more detailed assertions made at his recent November 2021 Board hearing, an opinion concerning the possibility of service connection on a secondary basis should also be obtained. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination to assess his claimed back condition, to include lumbar spine degenerative disc disease and intervertebral disc syndrome involving the left sciatic nerve. For each diagnosis that is affirmatively indicated, the examiner should note any symptoms attributable to that diagnosed condition. Thereafter, the examiner should author an opinion regarding the nature and etiology of the Veteran's claimed back condition. The entire claims file, including a complete copy of this remand and the results of the VA examination, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran's lay statements, the examiner should answer the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back condition had its onset during active duty OR is causally or etiologically related to any in-service event, disease, or injury, OR otherwise onset within one year of his departure from service? (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back condition is (1) proximately due to OR is (2) aggravated beyond its natural progression by his service-connected hernia condition. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. In so opining, the examiner is asked to reconcile, to the extent possible: the Veteran's lay assertions regarding the asserted in-service stair incident; the Veteran's lay assertions regarding his hernia which he is in receipt of service connection for; the prior disparity between the May 2015 examiner's conclusion and statement as outlined above; and the April 1997 VA treatment notation of "abdom hernia '70s, h/o LBP w/wt lifting 4 yrs ago Rad/x-rays: 3/97 x-ray: mild disk narrowing L4-5 consistent w/mild DDD". 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, Associate 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.