Citation Nr: 18155767 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 12-23 385 DATE: December 6, 2018 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for disability manifested by memory loss is remanded. (The issues of entitlement to an effective date prior to February 9, 2010 for the grant of service connection for residuals of a groin strain, entitlement to service connection for an acquired psychiatric disorder, entitlement to a compensable initial rating for residuals of a groin strain, entitlement to a total disability rating based on individual unemployability, and entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of status post open cholecystectomy with ligation of cholecystoduodenal fistula are addressed in a separate decision.) REASONS FOR REMAND The Veteran had active service from November 1976 to February 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). In April 2016, the Veteran testified at a video conference hearing before Veterans’ Law Judge (VLJ) Hawley. In October 2017, the Veteran testified at a Travel Board hearing before VLJ Banfield. Transcripts of both hearings have been associated with the claims file. When two hearings have been held by different VLJs concerning the same issues, the law also requires that the issues must be assigned to a panel of not less than three members of the Board. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3 (2018); Arneson v. Shinseki, 24 Vet. App. 379 (2011). While the Veteran was scheduled for a third hearing before another VLJ in October 2018, in a September 2018 correspondence the Veteran’s representative requested to cancel the hearing. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2018). The Board notes that the October 2017 hearing also addressed the issues of entitlement to an effective date prior to February 9, 2010 for the grant of service connection for residuals of a groin strain, entitlement to service connection for an acquired psychiatric disorder, entitlement to a compensable initial rating for residuals of a groin strain, entitlement to a total disability rating based on individual unemployability, and entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of status post open cholecystectomy with ligation of cholecystoduodenal fistula. As those matters were not addressed at the April 2016 hearing, a panel decision is not required and those issues are addressed in a separate decision. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for disability manifested by memory loss is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A September 30, 2016 VA treatment record indicates that the Veteran was to return for follow up appointment at the Tampa VA Medical Center on January 12, 2017. VA treatment records subsequent November 15, 2016 have not been associated with the claims file. Additionally, a September 10, 2002 VA treatment record notes that the Veteran had received treatment at the Northampton VA Medical Center in September 2002. To date, treatment records the Northampton VA Medical Center have not been associated with the claims file. Finally, VA treatment records from February 6, 2014, October 18, 2013, and August 19, 2011 indicate non-VA records, home health records, and emergency room records had been scanned into VistA Imaging. It does not appear that those records have been associated with the claims file. Accordingly, a remand to obtain the aforementioned records is required. The record also indicates that there are outstanding private treatment records. In April 2003, the Veteran provided a VA Form 21-4142 authorizing VA to obtain treatment records from Dr. Miller of Mental Health Care Inc. On his August 2013 VA 21-526, the Veteran reported receiving treatment at Gardner state prison. At his June 2012 VA examination, the Veteran reported receiving private primary care from Dr. Gadea. Finally, a March 17, 2011 VA treatment record notes that the Veteran was treated for back pain at an unidentified hospital in Georgia following a motor vehicle accident. To date, records from the identified private providers have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain the aforementioned records. In accordance with the August 2016 remand directives, the Veteran was afforded a VA thoracolumbar spine examination in January 2017. While the examiner initially opined that the Veteran’s lumbar spine conditions were less likely than incurred in or caused by active service, the examiner later stated that it would be mere speculation to ascertain when or which particular etiologic factor caused the Veteran’s lumbar conditions. As the examiner’s later statement undermines the certainty of the earlier negative opinion, further clarification is warranted. The Board has not overlooked the June 2018 report from Dr.Graf indicating that the Veteran’s intervertebral disc syndrome was related to his documented in-service fall. However, the Veteran’s service treatment records do not contain any reference to back symptomatology and Dr. Graf did not otherwise provide a sufficient rationale in support of his opinion. In light of the above, an addendum opinion is warranted. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the name and address of the the unidentified hospital in Georgia where he was treated for back pain after a motor vehicle accident. After securing any necessary release, request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed memory loss and back disabilities, including Dr. Miller of Mental Health Care Inc, Dr. Gadea, Gardner state prison, and any other correctional facility where he was incarcerated. After securing any necessary releases, request any relevant records identified. In addition, obtain any VA treatment records dated since November 15, 2016, all treatment records from the Northampton VA Medical Center, and the VistA Imaging records referenced in the February 6, 2014, October 18, 2013, and August 19, 2011 VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. To avoid duplication of effort, the RO is hereby notified that this directive is a duplicate of directive number 1 in the separate Board decision being issued contemporaneously. 3. After the above is completed to the extent possible, forward the claims file to an appropriate clinician to obtain an addendum opinion as to whether the Veteran’s lumbar spine disability at least as likely as not (50 percent or higher probability) arose during service or is otherwise related to service. In so opining, the clinician should address the Veteran’s assertions that his current back disability is related to his documented in-service fall on January 7, 1977 and / or his strenuous physical activity during service, including road marches, rucks, artillery training, and wearing heavy combat boots. The clinician should also address the May 2016 report from Dr. Adams and June 2018 report from Dr.Graf. A complete rationale for all opinions expressed should be provided. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson