Citation Nr: 22017011 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-40 400 DATE: March 23, 2022 REMANDED Entitlement to service connection for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to August 1989. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of additional evidence. No evidence was subsequently submitted by the Veteran or his representative. Entitlement to service connection for lumbar spine disability is remanded. The Veteran, and his representative, contends that his current lumbar spine disability stems from service. Specifically, the Veteran argues that his lumbar spine is related to his military duties, especially the parachute jumps. In the alternative, the Veteran argues that his lumbar spine disability is secondary to service-connected disabilities of the lower extremities. For reasons explained below, the Board finds that remand is necessary. Turning to the evidence of record, VA examination report, dated in June 2018, reflects that the Veteran was diagnosed with degenerative arthritis of the spine and degenerative disc disease. Next, the record reflects competent, credible evidence of in-service injury, described as military duties associated with parachute jumps. In this regard, the Veteran competently, and credibly testified to his in-service injury. See generally Hearing Transcript (November 2021). The Veteran's DD Form 214 further shows that he was awarded the Parachutist Badge, which requires the completion of Basic Airborne Course. The course generally necessitates that servicemembers complete multiple jumps that vary in jump configurations. Thus, the Board finds competent, credible evidence of in-service injury. VA medical opinion, dated in June 2018, reveals the conclusion that the Veteran's lumbar spine disability was less likely than not incurred in or caused by in-service injury, event, or illness. The Board finds the VA medical opinion inadequate for adjudicative purposes. Here, in support of the conclusion, the opinion inappropriately relied on the absence of documented treatment to form the negative opinion. In this regard, the opinion notes that the Veteran's service treatment records (STRs) do not document an injury to his thoracolumbar spine. The opinion, however, does not reveal a medical explanation or discussion connecting the absence of in-service complaints or treatment to the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The opinion additionally relied on quoted medical literature; yet, it does not provide or reflect consideration of facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Lastly, the opinion is inadequate because it does not reflect a meaningful discussion of the Veteran's lay statements or testimony. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). In this instance, the Board found competent, credible evidence of in-service injury, described as military duties associated with parachute jumps. The opinion, nevertheless, does not reveal an explanation or discussion on the Veteran's competent reports of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. As such, the Board may not rely upon the VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Next, the Board finds that remand is necessary to ensure that VA has met its duty to assist the Veteran in the development of his claim. The record appears to be incomplete insofar as it does not reveal a complete set of the Veteran's service personnel records or STRs from his period of service in the Army Reserve. In this regard, at the Board hearing, the Veteran testified that following active service, he enlisted into the Army Reserve. See Hearing Transcript at 12 (November 2021). The agency of original jurisdiction (AOJ), however, has not attempted to obtain the Veteran's STRs related to his period of service in the Army Reserve. Such information is relevant in the sense that it could help the Veteran establish the onset, or continuity of symptoms, of his disability. Lastly, remand is also required to attempt to obtain reasonably identified relevant outstanding treatment records. In this regard, the record reasonably identifies relevant outstanding non-VA treatment records. Specifically, at the Board hearing, the Veteran testified to receiving treatment for his lumbar spine disability from Piedmont Orthopedic. The claims file contains treatment records from this provider; however, the record does not seem to encompass all treatment records from Piedmont Orthopedic. In this regard, at the Board hearing, the Veteran indicated that he was still receiving treatment from this provider. See Hearing Transcript at 10 (November 2021). A review of the record shows that VA last obtained treatment records from this provider in November 2015. Since then, the record does not reveal that VA has received any additional outstanding private treatment records from this provider. As these treatment records, if obtained, could bear on the outcome of the Veteran's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is also required to afford the Veteran an opportunity to authorize release of these, and any other, relevant non-VA treatment records to VA. Aside from the above explicit finding, in remanding this matter, the Board makes no further finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Verify the dates of the Veteran's service in the Army Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service. (a) Obtain the Veteran's complete service personnel records pertaining to his service in the Army Reserve. Document all requests for information as well as all responses in the claims file. (b) Obtain the Veteran's complete STRs pertaining to his service in the Army Reserve. Document all requests for information as well as all responses in the claims file. (c) If necessary, notify the Veteran if service personnel records and/or STRs are unavailable through official sources and provide him an opportunity to provide copies of those records. 2. Ask the Veteran to complete a VA Form 21-4142 for all private medical providers seen for signs and symptoms of his lumbar spine disability, to include records from Piedmont Orthopedic, since his discharge August 1989 service separation. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's VA treatment records for the period from November 2022 to the Present. 4. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's lumbar spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any lumbar spine disability. NOTE (1): The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not dismiss the Veteran's competent report of symptoms in service and since without providing an explanation as to why. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. The clinician must opine on: Direct Service Connection (a) Whether the Veteran's lumbar spine disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Consider and expressly address conceded in-service injury, described as military duties associated with parachute jumps. Explain. Secondary Service Connection (b) Whether the Veteran's lumbar spine disability is at least as likely as not (1) proximately due to service-connected disabilities of the lower extremities, or (2) aggravated beyond its natural progression by service-connected disabilities of the lower extremities. Consider and discuss the Veteran's report of gait changes due to service-connected disabilities of the lower extremities. Explain. Provide a rationale that deals with causation and aggravation as independent concepts. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.