Citation Nr: 22019255 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 15-00 473A DATE: March 31, 2022 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1982 until his honorable discharge in November 1989. The Veteran had additional service in the Army National Guard of Texas and as a Reserve of the Army from March 1980 to September 1997, with multiple periods of active duty training (ADT) and inactive duty training (IDT). This case has a long procedural history, initially coming to the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office. In July 2017, the Veteran presented sworn testimony during a video-conference hearing before a Veterans Law Judge (Judge). A transcript of that hearing has been associated with the Veteran's claims file. This hearing was before a now-retired Judge. In January 2022, the Veteran was given an opportunity to request another hearing. In March 2022, the Veteran declined the opportunity for another hearing. In May 2018, March 2021, and July 2021, the Board remanded the claim for further development. The matter has now been returned for appellate consideration. The requested records development has been completed. Unfortunately, the Veteran's Army National Guard/Reserve service treatment records are unavailable for review. However, another remand is necessary to obtain an adequate and well-reasoned medical opinion. The Board sincerely regrets the delay, but finds it is necessary to ensure compliance with the duty to assist. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts his low back disability is related to his active duty service. Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The record reflects the Veteran was afforded a VA Back Conditions examination concerning his claim in May 2011. During the examination, the Veteran reported the onset of pain while in the service, and that he had intermittent pain with left radicular symptoms until 1995 when he had an L4-L5 discectomy. The VA examiner diagnosed lumbosacral spine degenerative disc disease and degenerative joint disease, status post discectomy, symptomatic with limitations and left L5 and S1 radiculopathy. In providing a negative nexus opinion, the examiner stated the Veteran's diagnoses were due to an injury in October 1995, while working as a carpenter, not on active duty. The examiner stated, "there is no evidence in the record that he had significant L-S spine disease prior to the 1995 accident." The examiner opined it was "less likely than not" that the Veteran's disability was connected to service. Unfortunately, the May 2011 VA opinion is not adequate. First, the VA examiner failed to consider the Veteran's lay statements regarding continuous symptomatology after his active service ended, as reflected during the July 2017 Board hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). In addition, the examiner noted that there was no specific injury during service. However, the Veteran testified that he injured his back after lifting a 325 pound generator, and a March 1984 STR confirms that the Veteran related this history to the clinician. See Reonal v. Brown, 5 Vet. App. 548 (1993) (finding that medical opinions have no probative value when they are based on an inaccurate factual premise). Finally, the examiner found no evidence of significant lumbosacral spine disease prior to the 1995 post-service work injury. However, the examiner provided no explanation for this statement in terms of its relevance to the disability at issue. For the foregoing reasons, the Board finds the May 2011 VA medical opinion inadequate. Accordingly, remand is necessary to obtain an adequate VA examination to address the etiology of the Veteran's lumbar spine disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's lumbar spine disability. The entire claims file and a copy of this Remand must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should address the following: 1. Whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's lumbar spine disability had its onset in or is otherwise related to his active service (December 1982 to November 1989). 2. Whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's lumbar spine disability had its onset within one year of service. The examiner should consider the following: The Veteran's statements about the onset and continuity of relevant symptoms over time. [See July 2017 Hearing Transcript, April 2013 NOD, January 2015 Correspondence, and December 2020 Correspondence]. Post-service medical records that show the Veteran suffered a work related lumbar spine injury in October 1995, to include an October 1995 MRI of the lumbar spine. [See Medical Treatment Record Non Governmental Facility, Receipt Date of September 3, 2020] A complete rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.