Citation Nr: 1753427 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-04 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a back disability. Unfortunately, the Board finds this issue must again be remanded for additional development before a decision can be rendered. This case was most recently remanded by the Board for additional development in February 2017. Specifically, at that time, the Board found that a June 2016 VA opinion with regard to the Veteran's back disability was inadequate because it was primarily based on the lack of documentation of a back disability during the Veteran's active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service-connection claim, the examination must be adequate). The Board elaborated that the June 2016 VA opinion did not reflect consideration of the Veteran's statements, both at the VA examination and in the record, concerning his back symptoms during service and continuing after service, and that the examiner incorrectly determined that the lack of documentation of the in-service injury, event or illness and the lack of complaints of back pain at separation were the only considerations for the basis of a nexus opinion. As such, the Board's February 2017 Remand found that a new VA medical opinion was required to address the Veteran's testimony regarding the onset and continuation of his back pain and directed the RO to obtain such an opinion. Specifically, the examiner was explicitly directed to accept as competent and credible the Veteran's report of jumping off the wing of a C130 airplane while in Vietnam (despite the absence of documentation of this event in his service records), and to address the Veteran's statements regarding the onset and continuity of his symptoms since service as result of a fall from the wing of an airplane. Pursuant to the Board's Remand instructions, in April 2017, a new VA medical opinion was obtained from the same VA medical professional who authored the previous opinion. Again, she concluded that the Veteran's back disability was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this opinion, she merely reiterated that: There is no documentation in STR's surrounding complaints of back pain and/or claimed back injury incident. There is no documentation until 2005 (33 years after discharge from active military service) surrounding complaints of low back pain. In 2009 (37 years after discharge from active military service) imaging made diagnosis of Degenerative arthritis of the spine. There is no change in medical opinion rendered 06/21/2016. There is no objective evidence to support the onset of Veteran's low back condition was incurred in or caused by an in-service injury, event or illness. There is no objective evidence to support aggravation. The Board emphasizes that this April 2017 VA opinion again failed to reflect consideration of the Veteran's statements concerning his back symptoms during service and continuing after service. Crucially, there was no discussion of the Veteran's report of jumping off the wing of a C130 airplane while in Vietnam, or the Veteran's statements regarding the onset and continuity of his symptoms since service as result of a fall from the wing of an airplane. For these reasons, the Board concludes that the RO did not substantially comply with its previous remand directives, and an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Again, the Board finds that the April 2017 VA addendum opinion obtained in response to the February 2017 Remand is not adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion from an examiner other than the examiner who provided the June 2016 and April 2017 VA opinions. Following review of the claims file, the examiner must express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any back disability was caused by or otherwise related to active service. For purposes of this opinion, the examiner is to accept as competent and credible the Veteran's report of jumping off the wing of a C130 airplane while in Vietnam, despite the absence of documentation of this event in his service records. Furthermore, the examiner should explicitly address the Veteran's statements regarding the onset and continuity of his symptoms since service as result of a fall from the wing of an airplane. A complete rationale should be provided for the opinion given. In rendering the requested opinion and providing the supporting rationale, the examiner must note that the fact that there is no documentation of treatment in service or post service is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. 2. After the above development has been completed, readjudicate the issue on appeal. If the benefit sought remains denied, then furnish the Veteran a supplemental statement of the case and an appropriate amount of time for response. Thereafter, return the case to the Board for review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).