Citation Nr: 20048845 Decision Date: 07/22/20 Archive Date: 07/22/20 DOCKET NO. 16-17 198 DATE: July 22, 2020 REMANDED Entitlement to service connection for lumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1954 to September 1957. He died in March 2016. The appellant is his surviving spouse and has been substituted in this appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newman, Georgia. This case was previously before Board in May 2019, at which time the issue of service connection for a lumbar spine condition was remanded for further development. Although the Board regrets the additional delay, further development is required prior to the adjudication of the Veteran’s claim. Entitlement to service connection for lumbar spine condition is remanded. The Board previously remanded this matter in May 2019 for further development, including an addendum opinion to the Veteran’s November 2015 VA examination. The Board determined that the November 2015 examiner based her opinion on the fact that no problems were documented with the Veteran’s back until 40 years after service; however, 1996 treatment notes documented a low back surgery in the late 1970s. See August 2015 Medical Treatment Record at p. 22 (August 1996 consultation note reflecting that “[a]pproximately 18 years ago [the Veteran] had low back surgery”). Thus, on remand, the Board directed , the examiner to provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s back disability is related to service, specifically taking into account the Veteran’s low back surgery in the late 1970s. Following the Board remand, VA secured an addendum opinion in March 2020. The examiner concluded it was less likely as not that the Veteran’s back disability wa related to, aggravated by or caused by the Veteran’s military service. Again, the examiner reasoned that the first post-service documentation of a back injury was 40 years after service, and “[w]hen comparing th[e] Veteran’s time of 3 years in the military to his forty plus years out of the military,” the examiner was unable to find clinical evidence that a back condition was caused by, related to or aggravated by the Veteran’s time in the military. Notably, the examiner identified the documents she considered in rendering her opinion; however, the 1996 treatment record was not among them. See March 2020 Addendum Opinion. The Board concludes that the March 2020 addendum opinion does not substantially comply with the May 2019 Board remand directives. The examiner did not specifically consider the August 1996 treatment record which documents the Veteran’s low back surgery in the late 1970s; instead, the examiner perpetuated the same error as the November 2015 examiner by presuming that the Veteran’s condition arose 40 years after service. Therefore, remand is required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). Additionally, the appellant has submitted multiple statements about her difficulties obtaining VA treatment records. She stated that she had attempted to obtain VA medical records from approximately 50 years prior but was unable to do so. She added that she was uncertain which VA clinic in Chicago that the Veteran had sought treatment, and she requested VA’s assistance in obtaining the Veteran’s medical records. See July 2020 Correspondence; June 2020 Correspondence; see also December 2015 Lay Statement (reporting that the Veteran had sought treatment for his lower back condition including chiropractor visits, injections, and morphine patches). Because there is evidence of possible outstanding treatment records, an attempt should be made to obtain any missing treatment records. Lastly, in a June 2020 letter, the appellant noted the Veteran reported to her that that during one of his 25 jumps, he sustained a concussion and hurt his back. See June 2020 Correspondence. The Veteran’s service treatment records noted the Veteran was injured during a parachute jump while serving in Germany. See Service Treatment Record pp. 8, 13. In light of the appellant’s assertions in this regard and the other evidence of record, the Board finds that remand is required to obtain missing records and obtain a medical opinion addressing this theory. The matter is REMANDED for the following action: 1. Attempt to obtain the Veteran’s outstanding VA treatment records to include records from the 1950s and 1960s. If unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the development requested in paragraph 1 is completed to the extent possible, send the claims file to an appropriate clinician to obtain the below requested opinion related to the etiology of the Veteran’s lower back condition. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. After reviewing the record, the clinician should respond to the following questions: Is it at least as likely as not (a 50 percent probability or greater) that the lower back condition was incurred in or is otherwise related to the Veteran’s active duty service? In addressing this question, the examiner should consider and discuss (1) the Veteran’s history of lower back complaints and treatments INCLUDING A LOW BACK SURGERY IN THE 1970s (see August 2015 Medical Treatment Record pp. 3, 4, 12, 13, 22) and (2) the contention that the Veteran’s back injury occurred at the same time that he sustained a concussion during service (see June 2020 Correspondence; see also Service Treatment Record p. 8, 13). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco, Law Clerk 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.