Citation Nr: 20066735 Decision Date: 10/14/20 Archive Date: 10/14/20 DOCKET NO. 03-01 211 DATE: October 14, 2020 REMANDED Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from October 1983 to April 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2002 rating decision. In decisions dated in December 2004 and September 2009, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. In a subsequent November 2010 decision, the Board denied entitlement to service connection for a back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). Following the Joint Motion, the Board remanded the case to the AOJ in decisions dated in July 2012 and January 2017. When the case returned to the Board in November 2017, the Board issued a decision denying the entitlement to service connection for a back disability. The Veteran appealed that decision to the Court, and the Court issued a November 2019 order vacating the Board's November 2017 decision and remanding the case to the Board for action consistent with the terms of the Joint Motion. 1. Entitlement to service connection for a back disorder is remanded. The record shows that a VA examination and medical opinion addressing the Veteran’s claim were last provided in September 2014. In the November 2019 Joint Motion, the parties agreed the Board failed to provide an adequate statement of reasons or bases for its finding that the September 2014 VA medical opinion was supported by an adequate rationale. The Joint Motion highlighted the fact that the September 2014 examiner reasoned that there were insufficient findings and evidence to establish a nexus at that time, but the examiner did not indicate what additional findings or evidence might support a medical nexus and whether it would be medically feasible to procure such evidence now. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Joint Motion also noted that the Board had failed to address the September 2015 argument from the Veteran's representative that MRI testing was necessary, and the lack thereof rendered the September 2014 VA examination and opinion inadequate. Based on the foregoing, the Board finds that the September 2014 VA medical opinion is inadequate, and a remand is necessary to obtain an additional VA examination that includes any necessary testing as well as a medical opinion that provides a complete rationale and addresses the representative’s contention regarding the necessity of an MRI. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also notes that the Veteran was incarcerated at the time of the September 2014 VA examination. In this regard, the United States Court of Appeals for Veterans Claims (Court) has long held that incarcerated Veterans are entitled to the same care and consideration given their fellow Veterans. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). Further, the Court has cautioned "those who adjudicate claims of incarcerated Veterans to be certain that they tailor their assistance to the particular circumstances of confinement." Id. Although the Veteran reported in a June 2017 Statement that he was scheduled to be released from incarceration in July 2018, it is unclear from the record if the Veteran is still incarcerated. Therefore, prior to scheduling the Veteran for a new VA examination, the AOJ should verify whether he remains incarcerated and, if so, follow the appropriate procedures for arranging examinations of incarcerated veterans. The matters are REMANDED for the following action: 1. Attempt to verify whether the Veteran is presently incarcerated and the current place of incarceration. If the Veteran has been released from incarceration, attempt to obtain his current mailing address. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 3. After the preceding development in paragraph 1 is completed, schedule the Veteran for a VA examination to determine the nature and etiology of any back disorder that may be present. If the Veteran is incarcerated, the AOJ should comply with the procedures applicable to scheduling examinations for incarcerated veterans. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should clearly identify all current back disorders. For each identified disorder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder was incurred in or is otherwise related to the Veteran’s active duty service, to include any injuries sustained therein. If the examiner concludes that further testing or research is necessary to provide an opinion, such testing or research should be conducted. In providing an opinion, the examiner should address the following: (1) the Veteran’s in-service treatment related to a low back injury in May 1984 and June 1984; (2) the Veteran’s contention that he has experienced low back pain since 1984; (3) the September 2015 statement from the Veteran’s representative indicating that an MRI is necessary to properly evaluate the Veteran’s back disorder and provide an adequate VA medical opinion; (4) the September 2015 statement in which the Veteran’s representative asserted that although a September 1999 x-ray did not have findings of a back injury, an MRI would have been necessary to view the Veteran's type of back disability as his back injuries relate to a degenerative tissue condition that is visible on an MRI rather than an x-ray; and (5) the July 2009 examination report completed by the medical director of the Indiana State Prison on behalf of VA in which the medical director indicated that an "MRI, especially of lumbar spine, would be helpful." 4. Thereafter, readjudicate the issue on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.