Citation Nr: 22018984
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 12-18 247
DATE: March 31, 2022

REMANDED

Entitlement to service connection for a lower back disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1957 to October 1959. He passed away in August 2020.

The Veteran passed away on August 8, 2020, during the pendency of this appeal. The appellant was recognized as the substitute claimant in December 2021 pursuant to 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). See Appeal Substitution Review, dated December 2, 2021. 

The claim currently before the Board was remanded in July 2020 for a new examination. As the remand directive has been fulfilled, the Board will review the claim.

1. Entitlement to service connection for a lower back disorder is remanded.

The Board must remand this claim for a new medical opinion.

Documentation on file indicates that the Veteran's service treatment records no longer exist. See e.g. VA Memo dated July 8, 2010. The Agency of Original Jurisdiction (AOJ) has taken all measures necessary in order to obtain the records or copies of the records.

In January 2022, the appellant was afforded a new VA medical opinion regarding the etiology of her spouse's lower back disorder. The VA examiner reviewed the Veteran's files and concluded that it was less likely than not that the Veteran's lower back disorder was related to service. However, the VA examiner noted that the service treatment records were "silent for a low back condition during service." Such a statement is erroneous as the Veteran's service treatment records no longer exist. As a result, the medical opinion is inadequate, and a new examination is warranted.

The matters are REMANDED for the following action:

1. Return the claims file to a VA examiner of appropriate expertise in order to determine the etiology of the Veteran's lower back disorder.

The VA examiner must answer whether it is at least as likely as not (i.e., a probability of fifty percent or greater) that the Veteran's lower back disorder is directly related to service.

The examiner is requested to address the Veteran's statement that he has had chronic low back pain for over 20 years.

The Veteran's service treatment records were destroyed, likely due to a fire. The absence of service treatment records cannot be used as evidence in formulating a medical opinion.

A complete rationale for any opinion expressed should be provided in a report.

 

 

David Gratz

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, 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.