BVA Case 14-1556: Back

3 In September 2009,the veteran underwent a VA spine examination,where a VA examiner opined that the veteran's current low back pain was less likely than not related to service,citing the lack of evidence showing treatment for recurrent back pain between 1981 and 2001 and a lack of objective medical evidence that the back pain suffered in 1972 and 1973 was of the same etiology as the 2008 MRI findings.

The Board found the September 2009 VA examination report inadequate because the examiner's opinion was improperly based on the lack of contemporaneous medical records from 1981 to 2001.

Additionally,the Board found: [T]he record contradicts the examiner's notation in the examination report that there was no care from the [v]eteran['s]separation from service in 1981 to 2001.

With respect to the latter,the Board noted that a September 2008 RO request for VA records was unnecessarily limited to March 1982[]and that a January 2009 RO request for VA records was similarly limited in time frame as well as in requesting records specifically relating to a surgery.

Regarding the search for records,the Board stated that the AMC had found no progress notes at 5 the Fargo VAMC and had located Sioux Falls VAMC records from November 2007 to August 2010; however,it was not clear what time period was searched at the Fargo VAMC, and the Board noted that there may be additional more recent treatment records from the Sioux Falls VAMC.

The Board found that VA's duty to assist in locating the March 1982 Fargo treatment records was satisfied by the RO's requests in 2008 and 2009 and stated that any further attempts to obtain the purported March 1982 records would be futile.

The Board found that the 2009 and 2010 VA medical examinations were inadequate because the examiners did not consider the veteran's report of continuing back pain and self-treatment for many years following service and .

However,the Board found that the April 2012 VA medical examination report was adequate and persuasive evidence,observing the examiner's rationale that the in-service injuries were not of sufficient severity to have caused the veteran's current symptoms and that the veteran's more serious symptoms did not appear until many years following service,suggesting normal wear and tear due to the aging process was a more likely cause.