Citation Nr: A25035704 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240823-466127 DATE: April 17, 2025 REMANDED Entitlement to service connection for lumbar spine condition, to include degenerative arthritis of the spine is remanded. REASONS FOR REMAND The Veteran served in the Navy on active duty from March 1981 to September 1986 and from March 1987 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2023 rating decision by the Regional Office (RO). In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for lumbar spine condition, to include degenerative arthritis of the spine is remanded. The Veteran contends his lumbar spine condition should be service connected as it is related to injuries he sustained on active duty. See Notice of Disagreement, August 2024. Remand is permitted only to correct pre-decisional duty to assist errors, or for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. In its November 2023 rating decision, the AOJ favorably found that the Veteran has a current diagnosis of degenerative arthritis of the spine. The AOJ also conceded that the Veteran reported back pain in service between 1984 and 1987. These favorable findings are binding on the Board. The Veteran was afforded a back VA examination in December 2017. The examiner diagnosed degenerative arthritis of the spine and noted a history of a 1987 mechanical back pain diagnosis, a 1989 lumbosacral back strain which had both resolved, and spondylolisthesis of L5 on S1 in 1995. The Veteran described his history with back pain stating, he injured his back in March 2004 while at work. The Veteran told the examiner he had been diagnosed with level 4 spondyloschisis and had back surgery in July 2005 and had a nerve stimulator placed in 2006. The Veteran described symptoms of pain in his lower back associated with sitting, standing, and walking that radiated down the back of both of his legs. He was treating the pain with epidural injections and pain management, including Neurontin. After examination, the examiner opined that the Veteran's degenerative arthritis of the spine was less likely than not related to in service injury. The examiner reasoned that, "this Veteran's service treatment records are silent for any significant back injuries or continuing back complaints documenting only that the Veteran was evaluated & treated for self-limiting mechanical back pain/back strain in 1984 & again in 1987. Subsequent available service treatment records (including separation medical exam dated 1/30/1989) are silent for any complaints of back pain or any back problems. X-rays in 1995 (6 years after discharge from military service) document early degenerative changes of the lumbar spine with "first degree spondylolisthesis of L5 on S1."' The examiner attributed the Veteran's back degenerative arthritis to his post-service back injury in 2004. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. When the Secretary provides a veteran with a VA medical examination or opinion, it must be adequate. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and describes the disability in detail sufficient for the Board's evaluation of the claimed disability to be fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); See also Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiner discounted the Veteran's in service complaints of back pain as insignificant. The Veteran made multiple reports of back pain, years apart, indicating chronicity, however the examiner failed to opine whether his arthritis was presumptively related to service as a chronic condition. Further, the examiner failed to consider the Veteran's reports of ongoing back pain since service regardless of the gap in medical treatment for the condition. A medical examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the appellant's current disability and his military service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, the examination is inadequate. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (holding examiner's failure to consider veteran's testimony when forming medical opinion renders that opinion inadequate); see also McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Moreover, imaging in 1995 showed degenerative arthritis, however the examiner attributed the Veteran's arthritis to a post-service accident that occurred in 2004, after the Veteran had already provably developed arthritis. The opinion is inadequate as it is based on an inaccurate factual premise as the Veteran's arthritis preceded his work injury. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). The Board, thus, finds that a remand is needed to obtain a new medical examination and nexus opinions about the Veteran's current back condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for the back condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the back condition approximately at least as likely as not (approximate balance of positive and negative evidence) related to service, including reported back pain in service between 1984 and 1987. (b.) Is it approximately at least as likely as not that the degenerative arthritis of the spine (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the 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? Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Leuer, 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.