Citation Nr: 20047049 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 14-12 458 DATE: July 14, 2020 REMANDED Entitlement to service connection for a back disability, to include arthritis, is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard from May 1978 to May 1985, and during this time, he had active duty from July 1978 to September 1978. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript of that hearing is associated with the claims file. In a September 2018 decision, the Board denied service connection for a low back disability. Subsequently, the Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court/CAVC), and per an August 2019 Joint Motion for Remand (JMR), the Court has remanded the appeal to the Board for further development. Entitlement to service connection for a back disability, to include arthritis, is remanded. The August 2019 JMR indicates that remand is necessary to 1) ensure compliance with the Board’s January 2016 remand directives; 2) address the credibility of lay assertions; 3) address whether a new VA opinion is warranted; and 4) obtain records. The Board will address each matter. January 2016 Remand Directives The August 2019 JMR indicates that in failing to address the Veteran’s inactive duty for training (INACDUTRA) status on August 12 and 13, 1983, the Board did not ensure compliance with its January 2016 remand directives, which included seeking a new VA opinion for the asserted back injury that occurred on those dates. The January 2016 Board remand noted that a “mid-August” service treatment record (STR) reflects the Veteran’s reports of injuring his back after lifting a desk. The Board also noted that the Veteran’s duty status at that time was not known. As such, the appeal was remanded to verify the Veteran’s duty status in mid-August, specifically August 12 and 13, 1983. See January 2016 Board Remand. If verified, the Board instructed the Agency of Original Jurisdiction (AOJ) to seek a new medical opinion. As to these directives, the Board specified in the September 2018 decision that an August 15, 1983, STR states that the Veteran complained of back pain for two days and stated that he was lifting a desk. As also explained in the September 2018 decision, the Board had therefore narrowed the time frame of the injury as occurring a few days prior to August 15, 1983, on August 12 or 13, 1983. As also explained in the September 2018 decision, an August 1983 Leave and Earning Statement was then associated with the file post-remand in March 2016 and indicated that the Veteran served on August 6 and 7, 1983. There was no notation of service on August 12 or 13, 1983. The August 2019 JMR acknowledges that the Board verified the Veteran’s duty status for August 1983. The JMR also does not raise issue as to the Board’s determination that the Veteran was not on ACDUTRA on August 12, 1983, or August 13, 1983. However, the Board did not also address whether the Veteran was on INACDUTRA for these dates. A determination as to whether the Veteran served on INACDUTRA on August 12, 1983, or August 13, 1983, directly relates to the January 2016 remand directives as to the need for a new VA exam. As such, the Board will now address the Veteran’s INACDUTRA status on these dates in order to explain why there was substantial compliance with the January 2016 remand directives, and further remand is not warranted as to any back injury that occurred on August 12 or 13, 1983. As noted, the January 2016 remand indicated that a new VA opinion/examination be provided if the Veteran’s ACDUTRA or INACDUTRA for August 12, 1983 and/or August 13, 1983, was verified. The Board notes that additional development is not necessary to now address the Veteran’s INACDUTRA status, which may also be determined based on the August 1983 Leave and Earning Statement. As noted in the September 2018 decision, the August 1983 Leave and Earning Statement only indicates that the Veteran served on August 6 and 7, 1983. As also explained in the September 2018 decision, as an official record of the Veteran’s days served, the Board finds the August 1983 Leave and Earning statement highly probative. Moreover, as the STR indicating the back injury is dated August 15, 1983, and indicates complaints of back pain for two days, it is reasonable to narrow down the time frame for the back injury to August 12-13, 1983. Nor is there any additional evidence of record to support that the Veteran served on INACDUTRA on August 12 or 13, 1983. As such, the record also does not support a finding of INACDUTRA on August 12 or 13, 1983. As neither ACDUTRA nor INACDUTRA status are confirmed for those dates, the January 2016 remand directive to seek a new VA opinion and/or provide a new VA exam as to the back injury that occurred on those dates was not triggered. Service connection for INACDUTRA is permitted only for injuries incurred or aggravated in line of duty. See 38 U.S.C. §§ 101(24), 106, 1131; see also Brooks v. Brown, 5 Vet. App. 484, 485 (1993). As such, remand is not necessary to provide an exam for any back injury that occurred on August 12, 1983, or August 13, 1983. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). New VA opinion/examination and credibility of lay statements However, remand is necessary to obtain a medical opinion regarding an additional asserted in-service injury. The August 2019 JMR also indicates that the Board did not adequately address lay statements of record regarding this in-service injury. The August 2019 JMR notes that the Board acknowledged the Veteran’s assertions of being hit in the back with the butt of a gun during basic training and having back pain since. However, the JMR indicates that that Board did not make a credibility determination as to these assertions. Nor did the Board address additional buddy statements indicating that the Veteran injured his back during basic training and has had back pain since then. Additionally, the Board notes that following the September 2018 decision, the Veteran submitted additional statements regarding the injury to his back during basic training. In the November 2018 written statement, he asserts that he was hit in the back with the butt of a gun during basic training. He asserts that he dealt with the pain and did not seek treatment. He also asserts that an at-work injury when he tripped and fell caused the back pain to worsen. He asserts that he has had back surgery, and the pain worsened from the military. However, there is no adequate medical opinion of record as to the injury during basic training or addressing the statements submitted after the Board decision was rendered. Thus, an addendum opinion is necessary to address the Veteran’s claimed in-service back injury of being hit in the back with the butt of a gun during basic training. In seeking a new medical opinion, the Board acknowledges that the Veteran submitted medical records in August 2019 regarding his appeal for service connection for a back disability. However, these records only reflect treatment for a back disability, which speaks to a current diagnosis. A current diagnosis is already established. The treatment records do not speak to a nexus between the Veteran’s current back disability and his service. Thus, the treatment records are not sufficient to allow the Board to adjudicate the appeal, and remand is necessary to obtain an adequate medical opinion. Social Security Administration (SSA) Records Remand is also necessary to obtain SSA records. The August 2019 JMR indicates that the Board acknowledged in the September 2018 decision that the Veteran was in receipt of SSA benefits for his back. The JMR also notes the Veteran’s statements at the November 2015 Board hearing that he applied for SSA benefits for his back and was currently receiving such benefits. At the time of the September 2018 decision, a letter from the Social Security Administration was of record indicating that the Veteran was receiving benefits. However, the JMR indicates that BVA did not address whether the duty to assist required VA to obtain those records as well. Accordingly, remand is also necessary to ensure that the Veteran’s complete SSA records are associated with the claims file. The matters are REMANDED for the following action: 1. Take the appropriate steps to obtain the Veteran’s records from the Social Security Administration. If the AOJ is unable to obtain these records, a formal finding of unavailability should be rendered, and the Veteran should be notified and informed that he may provide the records. 2. After associating any outstanding SSA records with the claims file, have an appropriate examiner review the claims file and provide an opinion concerning the nature and etiology of the Veteran’s current back disability. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran’s or other reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must consider the Veteran’s and any other competent lay statements and be accompanied by a rationale. Service Connection: The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current back disability, to include arthritis, began in service, was caused by service, or is otherwise related to his active service. i) Importantly, the examiner must consider the Veteran and numerous lay statements indicating that he was hit in the back with the butt of a gun during basic training, that he self-medicated rather than seek treatment and has experienced back pain since. ii) The examiner must also address the Veteran’s reports of injuring his back post-service at work and a subsequent back surgery, which he asserts worsened his back pain from service The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate 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.