Citation Nr: 20007891 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-11 161A DATE: January 30, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to May 1979, and from September 2009 to March 2010, with additional Reserve service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2019. A transcript of that hearing is of record. 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a neck disability is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. During the April 2019 Board hearing, the Veteran reported that he had been treated at a VA Medical Center in Orlando from 2018 to the present. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. During the April 2019 Board hearing, the Veteran also indicated that there may be relevant outstanding private treatment records. As these matters are being remanded, the Veteran should be given the opportunity to identify any relevant private treatment records that he would like VA to request, other than the private records already associated with the claims file of First Hospital Panamericano, V. Spine Institute, West Open MRI, and Dr. P-R. The Veteran contends in a September 2014 statement that he injured his back in October 2008 while on active duty, and then re-injured it in 2009. The Veteran’s April 2019 hearing testimony is that he injured his lower back during a training exercise in 2010. A September 2008 treatment record from a military facility notes that the Veteran sought treatment for lumbar region back pain with its onset after training, and the Board finds that this is likely the training incident referenced by the Veteran. The Board also recognizes a November 2009 notation of back/shoulder injury, with emphasis on upper back pain, which may be the 2009 re-injury referenced in the September 2014 statement. While the November 2009 incident occurred during the Veteran’s verified active service, the September 2008 incident has not been shown by documents of record to have occurred during a verified period of service. Upon remand, an attempt should be made to verify whether the Veteran had active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in September 2008. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA examiner has opined whether the Veteran has a low back disabiliuty that is related to the 2008 back injury, which the Veteran contends occurred during training, or any 2009 re-injury. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a neck disability because no VA examiner has opined whether the Veteran has a cervical spine or neck disability that is realted to the November 2009 report of upper back/shoulder injury. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the VA Medical Center in Orlando, Florida, including from 2018. 2. Ask the Veteran to complete a VA Form 21-4142 for each private facility at which he received back and/or neck treatment, (other than First Hospital Panamericano, V. Spine Institute, West Open MRI, and Dr. P-R, as records from these facilities are already associated with the Veteran’s claims file). Make two requests for the authorized records from each facility identified by the Veteran unless it is clear after the first request that a second request would be futile. 3. Contact the appropriate resources and attempt to verify whether the Veteran’s Reserve service included any periods of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in September 2008, and ascertain the dates for each such period of service. All attempts to verify such service should be documented of record. 4. After completing verification of whether the Veteran had ACDUTRA or INACDUTRA in September 2008, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. (a.) If the Veteran had ACDUTRA or INACDUTRA on September 12, 2008, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability related to military service, to include lumbar region pain for which he sought treatment on September 12, 2008. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability that is related to service, to include the back/shoulder injury for which he sought treatment in November 2009? Any opinion offered must be supported by a complete rationale. The examiner is advised that the Veteran testified at his April 2019 hearing that he has suffered from low back pain from the time of these injuries to the present day, although he denied back pain in June 2009 and August 2009. The Veteran’s VA treatment records first note back pain in December 2013. A July 2014 VA treatment record indicates a history of back pain since the military after sustaining a couple of falls, but also indicates that he has not recovered since an incident of about one year previously when he got stuck while changing a tire. 5. After completing verification of whether the Veteran had ACDUTRA or INACDUTRA service in September 2008, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck or cervical spine disability. (a.) If the Veteran had ACDUTRA or INACDUTRA on September 12, 2008, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a neck or cervical spine disability due to a period of ACDUTRA or INACDUTRA, to include related to the September 12, 2008 incident in which the Veteran reported upper back/cervical pain with its onset after training. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a neck or cervical spine disability due to service, to include that is related to the November 2009 incident resulting in upper back pain? Any opinion must be supported by a complete rationale. The examiner is advised that although the Veteran testified that he has experienced neck pain from an in-service training injury to the current day, his post-service treatment records indicate that he did not report neck or upper back pain until July 2013, at which point he stated that he suffered from cervical pain radiating to the left arm for the last week after doing some mechanical work and lifting heavy weight. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and   provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.