Citation Nr: 21001327 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-27 179A DATE: January 7, 2021 REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1985 to May 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a June 2016 hearing. This issue was previously before the Board in December 2016 and January 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for a low back disorder is remanded. Remand is required for substantial compliance with the January 2020 Board remand instructions. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The January 2020 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA treatment records, and to provide the Veteran with a new VA examination. Additional VA treatment records were successfully added to the claims file in February and July 2020. First, remand is required for an addendum VA medical opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran underwent a new VA examination in February 2020. The examiner provided a negative nexus opinion, stating that it is less likely as not that the low back disorder was due to service because degenerative arthritis is a natural disease process of aging. However, the examiner failed to provide any other supporting explanation. Further, the January 2020 Board remand instructed the examiner to address the Veteran’s service treatment records (STRs), the Veteran’s lay statements, the 2004 and 2010 VA examinations, the Veteran’s military occupational specialty (MOS) during service, and the 2009 motor vehicle accident. Although the examiner tacitly acknowledged these records in their review of the medical history, they failed to actually address any of them in the nexus opinion. Further, the examiner erroneously stated that the STRs are silent for back issues; a February 1992 examination notes the Veteran’s complaints of back pain from lifting chains and other equipment as part of his MOS. Additionally, the examiner made note of VA treatment records from August 2019 and January 2020 where the Veteran made no complaint of back issues. Again, as the examiner failed to provide any supporting rationale in the nexus opinion, it is unclear how these records might have contributed to form their conclusions; however, the Board notes the Veteran’s lay statements at the September 2004 and March 2017 VA examinations that the lumbar sprain flares up after heavy lifting, and that he now avoids heavy lifting altogether to prevent the pain. Further, the bulk of the medical records for the last few years have focused on the service-connected mandibular cancer and subsequent mandible reconstruction surgery, which was the primary focus of the August 2019 and January 2020 VA treatment records cited by the examiner. Accordingly, remand is required for an addendum VA medical opinion. The Board notes that in the October 2020 Written Brief Presentation, the Veteran’s representative raised the theory that the low back disorder may be related to the Veteran’s service-connected PTSD. In support of this theory, the representative cited medical articles that found that patients with PTSD have high rates of chronic pain and patients with chronic pain also have disproportionately high rates of PTSD; however, VA does not have constructive possession of these articles. Accordingly, while on remand, the RO should attempt to obtain these articles from the Veteran or his representative and associate them with the claims file so that they may be addressed in the addendum VA medical opinion. Second, remand is required to obtain missing medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, and records from facilities with which the VA has contracted. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). VA’s duty to assist claimants to obtain evidence needed to substantiate a claim also includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). At the June 2016 Board hearing, the Veteran testified that he received treatment for his back in the 1990s while living in Germany following separation from service. During his March 2017 VA examination, the Veteran asserted that he had a recurrence of low back pain in 1997 while in Germany. In October 2003, the Veteran submitted copies of VA Form 21-4142 Authorization and Consent to Release Information for Dr. WS, Dr. KKB, Dr. S, and Burgerhospital Freiberg. The RO sent letters in December 2003 requesting the Veteran’s records. Records from Burgerhospital Freiberg were successfully added to the claims file in December 2003 and June 2004, and records from Dr. S were added in January 2004. The RO received no response from Dr. WS or Dr. KKB, and appears to have made no further attempts to retrieve these records. Further, multiple VA treatment records indicate that records from outside facilities were scanned into Vista imaging. These dates include May and July 2012, March and April 2013, September 2014, September and October 2016, and March 2019. The Board does not have access to Vista imaging, so these records will need to be added to the Veteran’s claims file separately. Accordingly, remand is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including outside records scanned into Vista imaging in May and July 2012, March and April 2013, September 2014, September and October 2016, and March 2019. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include Dr. WS and Dr. KKB. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Contact the Veteran and his representative to afford him the opportunity to provide the medical articles cited in the October 2020 Written Brief Presentation. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the low back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the low back disorder had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the low back disorder is caused by the service-connected PTSD. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the low back disorder is aggravated by the service-connected PTSD. (d) The examiner must address the following: 1) the Veteran’s service treatment records, including the February 1992 examination noting the Veteran’s complaint of recurrent back pain from lifting chains and other equipment as part of his military occupational specialty; 2) the Veteran’s lay statements of recurrent back pain since service; 3) the 2004, 2010, 2017, and 2020 VA examinations; 4) the June 2016 Board hearing testimony; 5) the 2009 motor vehicle accident; 6) the November 1999 PTRs noting complaints of lumbar pain and a diagnosis of lumbalgia; and 7) the October 2020 Written Brief Presentation citing to articles suggesting a link between chronic pain and PTSD. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.