Citation Nr: 22018889
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 17-53 325
DATE: March 30, 2022

REMANDED

Entitlement to service connection for a low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1975 to July 1979. He also served in the United States Army Reserves. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2020, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript is of record. In a September 2021 letter, the Board notified the Veteran that the VLJ who conducted his hearing is no longer employed by the Board, and that he could have a new hearing.  The Veteran did not respond; therefore, another hearing will not be scheduled.

In March 2021, the Board remanded this claim for additional development.  The Board also remanded a claim for service connection for an acquired psychiatric disorder. While on remand, the RO granted service connection for posttraumatic stress disorder. See July 2021 rating decision. This grant of service connection constitutes a full award of benefits sought on appeal and this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 

1. Entitlement to service connection for a low back disability is remanded.

The Veteran seeks service connection for a low back disability. He contends that his low back disability is related to an injury in-service when he fell from a truck. At his September 2020 hearing, the Veteran related that his back symptoms persisted after he was discharged, and that he self-medicated to treat the pain.

In compliance with the March 2021 Board remand directives, the Veteran underwent a VA examination in May 2021. In providing a negative nexus opinion, the examiner indicated that the symptoms were subjective only, and that a nexus had not been established. The examiner further indicated that the Veteran was not diagnosed with a back disability while in service. They noted acute injury of back strain while playing football, but indicated that there was no evidence of past or current treatment for a chronic back condition, no complaints of a chronic back condition in the Veteran's service treatment records or in his post-service medical records, and no evidence in the records of residual back symptoms related to the in-service accidents.

The examiner improperly focused on the fact that the Veteran's reported symptoms were 'subjective only,' and the opinion does not reflect appropriate consideration of the lay evidence of in-service incurrence and report self-treatment of low back pain. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, an addendum opinion that properly considers the relevant lay evidence must be obtained.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's low back disability is at least as likely as not related to service, including the reported in-service back injury.

In providing the requested opinion and rationale, consider the Veteran's description of his in-service back injuries and symptoms as well as his post-service symptoms such as recurrent low back pain since service discharge. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current lumbar spine disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

 

 

Hannah Fisher

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Lauritzen, 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.