Citation Nr: 20042041 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 14-38 038 DATE: June 19, 2020 REMANDED Service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1970 to September 1973. This matter is on appeal from a January 2014 rating decision. This issue was previously remanded by the Board in April 2018 to attempt to obtain additional treatment records. The Agency of Original Jurisdiction (AOJ) sent requests to the Veteran to authorize VA to obtain those records in October 2018, September 2019, and October 2019, but the Veteran did not respond. The duty to assist is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There was therefore substantial compliance with the remand directives, though an additional remand is necessary for other reasons. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for a back disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). The Veteran was afforded a VA examination in December 2013. The examiner diagnosed degenerative arthritis of the spine but only opined as to whether it was incurred in or caused by his in-service low back injury, not whether his arthritis had its onset within one year of separation from active duty service. In addition, the examiner’s opinion that it was less likely than not that the Veteran’s low back disability was incurred in or caused by active duty service, despite multiple service treatment records noting back pain and lay reports of continuity, was based on the facts that back symptoms were not reported at the time of the separation examination and the Veteran’s back symptoms did not lead to a limited duty profile or medical discharge. This is an insufficient rationale for a negative nexus opinion. For this reason, a remand is warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s low back disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current that any current low back disability, including arthritis, began in service, was caused by service, had its onset within one year of the Veteran’s separation from active duty, or is otherwise related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A May 1972 service treatment record noting a three-month history of back pain after being kicked in the back. b. A December 1972 service treatment record noting a lumbosacral strain. c. A February 1973 service treatment record noting the Veteran’s report of low back pain and a diagnosis of a right para lumbar spasm. d. A May 1973 service treatment record noting the Veteran’s report of intermittent back pain since December 1972 and a diagnosis of musculoskeletal back pain. e. The Veteran’s report a claim VA received in November 1973, seven weeks after his separation from active duty service, of a back condition with its onset in the summer of 1972. f. The Veteran’s report of the onset and continuity of his low back symptoms during the December 2013 VA examination. g. The Veteran’s report of the onset and continuity of his symptoms in his January 2014 Notice of Disagreement (NOD). h. The Veteran’s report of the onset and continuity of his symptoms in his October 2014 substantive appeal (VA Form 9). The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in the Veteran’s separation examination report cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Ensure that the directive specified in this remand has been implemented. If it has not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.