Citation Nr: 22017135 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-34 165 DATE: March 24, 2022 REMANDED Entitlement to service connection for a low back condition is remanded. REASONS FOR REMAND The Veteran served on active duty as a medical records specialist in the U.S. Army from November 1967 to August 1970, including service in Vietnam from December 1968 to August 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. Most recently, in August 2021, the Board remanded the claim for further development. This matter is now returned to the Board for further appellate review. Entitlement to service connection for a low back condition The Veteran asserts that he incurred a back disability in service when he fell off a bunker and onto his back during a rocket attack in Vietnam. See Hearing transcript at p.5; see also Form 9, September 2015. As an initial matter, the Veteran's DD Form 214 shows he served in Vietnam from December 1968 to August 1970 as a medical records specialist, and that he was awarded the Bronze Star and Purple Heart Medals. May 1969 service treatment records show he was treated for left finger and right thigh injuries after a rocket attack on a bunker in Chu Lai. See STRs, received July 2013 at p.23. Although no back injury is noted in these records, nevertheless, the Board is mindful of the provisions of 38 U.S.C. 1154(b) and finds the Veteran's report of being thrown on his back in the rocket attack to be consistent with the circumstances, conditions, or hardships of his service. Most recently, in August 2021, the Board remanded the claim so that a new VA medical opinion could be obtained. The Board directed that the VA examiner presume some type of back trauma occurred in the May 1969 rocket attack due to the Veteran falling on his back even though the injury was undocumented and the Board directed the VA examiner to clarify whether the Veteran's claimed back condition is caused by his active service. It was presumed that back trauma occurred, and the question was whether it was the cause of chronic disability. Subsequently, a September 2021 VA medical opinion was provided. The examiner opined it is less likely than not that the Veteran's back condition was incurred in service. The examiner reasoned in part that the service treatment records show no back complaints or treatment for shrapnel wounds, which is inconsistent with the Veteran's report of being blown onto his back by the rocket attack. The examiner further reasoned that there was no evidence of complaint until 2012, and that a 2013 x-ray showed mild degeneration that was likely age related. Regrettably, because this opinion did not presume that the Veteran incurred a back injury in a rocket attack in May 1969, the Board finds the claim must be remanded to ask the VA examiner to render a new opinion that presumes some type of back injury did occur in the May 1969 rocket attack, and then clarify whether the Veteran incurred a chronic back disability as a result. Also, in December 2021, the Veteran submitted a statement from his spouse who reported observing the Veteran's back discomfort since meeting the Veteran following his duty in Vietnam and married him in 1971. The statement must be reviewed by the examiner in the context of the contention of a continuity of back symptoms since service. The matter is REMANDED for the following action: 1. Ask the same VA examiner who provided the September 2021 VA medical opinion to provide an addendum VA medical opinion based on a review of the entire claims file to address whether it is "at least as likely as not" (probability of 50 percent or more) that the Veteran has a back disability that was caused by his active service, including as due a back injury he is presumed to have incurred in May 1969 falling onto his back in a rocket attack on a bunker. The claims folder must be provided to the examiner for review. Explain to the VA examiner that some type of back trauma in the May 1969 rocket attack must be presumed for purposes of the opinion, even if undocumented in the service treatment records, and even if it did not immediately result in chronic disability. However, the opinion should address whether any presumed trauma from the fall on the back caused a chronic disability later in life. The examiner also should comment on whether the Veteran's and the spouse's recent report of continued back pain is medically consistent with the remainder of the records. Any opinion must be accompanied by a complete rationale. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.