Citation Nr: 20056940 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 17-07 916 DATE: August 28, 2020 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a left big toe condition is remanded. REASONS FOR REMAND The Veteran had active duty service in the Army from October 1954 to September 1957, and in the Air Force from December 1958 to May 1984. These matters are on appeal to the Board of Veterans’ Appeals (Board) from September 2015 and November 2015 rating decisions of a regional office (RO) of the Department of Veterans Affairs (VA). In November 2018, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. Thereafter, in February 2019, the Board remanded the issues considered below. Also remanded were the issues of entitlement to service connection for a broken left foot and traumatic brain injury. Thereafter, during the development period, those issues were granted in full and are no longer before the Board. Entitlement to Service Connection for a Back Condition and Entitlement to Service Connection for a Left Big Toe Condition are Remanded. In its February 2019 Remand, the Board noted that the Veteran’s service treatment records are incomplete, and the record reflects that the information could not be reconstructed. The Board emphasized that in cases where the Veteran’s service treatment records are unavailable through no fault of his own, there is a “heightened duty” to assist him in the development of the case. See O’Hare v. Derwinski, 1Vet. App.365 (1991); Cuevas v. Principi, 3Vet. App.542 (1992). The Board found that the heightened duty included providing medical examinations in this case. The Board remanded the issues for VA examinations, noting specifically, that the examiner must consider the medical record and the lay evidence of record in making his or her decision as to the etiology of the Veteran’s back and left toe disorders. Accordingly, in December 2019, the Veteran underwent VA examinations of his back and left toe by the same VA examiner. Regrettably, in both examinations, the VA examiner concluded that the Veteran’s back and left toe conditions were not related to service due to the lack of continuous treatment from service. Significantly, the examiner did not discuss the Veteran’s lay statements that he has experienced back and left toe symptoms since service. As the examiner failed to address the lay evidence as requested, the Board finds the examination inadequate and a new examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his back condition. The Veteran’s claims file, to include a copy of the decision, must be made available to the examiner along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. Following examination of the Veteran, the examiner is to provide an opinion addressing the following: Determine whether the Veteran has a current diagnosed disability of the back. For each such diagnosed condition, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the claimed condition had onset in service or is directly linked to the Veteran’s time on active duty. The provided medical opinion must reflect consideration of both the medical and lay evidence of record (the Veteran’s November 2018 hearing testimony) setting forth a complete rationale for all findings and conclusions. 2.Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his left toe condition. The Veteran’s claims file, to include a copy of the decision, must be made available to the examiner along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion Following examination of the Veteran, the examiner is to provide an opinion addressing the following: Determine whether the Veteran has a current diagnosed disability of the left toe. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the claimed condition had onset in service or is directly linked to the Veteran’s time on active duty. The provided medical opinion must reflect consideration of both the medical and lay evidence of record (the Veteran’s November 2018 hearing testimony) setting forth a complete rationale for all findings and conclusions. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.