Citation Nr: 21001546 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-07 097 DATE: January 8, 2021 REMANDED Entitlement to service connection for the Veteran’s back condition is remanded. REASONS FOR REMAND The evidence in the claims file indicates that the Veteran served in the Army Reserves between November 1997 to January 2005. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from a rating decision issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Appellant testified at a Board hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is associated with the record. During the hearing, the Veteran testified that he had a positive private opinion from Dr. Litz couple of years ago linking his back condition to his motor vehicle accident in service. Hence, the Board remanded the matter in January 2020 and directed the RO to obtain outstanding VA and private treatment records specifically from Dr. Litz. The RO obtained the records and readjudicated the claim, and the matter has been returned to the Board for appellate consideration. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds there has been substantial compliance with its January 2020 remand directives. See Stegall, 11 Vet. App. at 271; See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall). Although, the RO complied with the last remand, however regrettably, the Board finds that further remand is necessary in this case for the reasons below. Entitlement to service connection for the Veteran’s back condition is remanded. The Veteran contends that his neck and back conditions are due to a motor vehicle accident that occurred during service in August 2001, when he was returning from the training. It has already been established that this accident occurred while the Veteran was on active duty for training, and the Veteran has already been granted an entitlement to service connection for his neck condition. The evidence of record indicates that the Veteran was treated the next day after the accident by the private clinic, Mercy Medical Center, where the examiner noted bulging disc in his neck, and a cervical and thoracic strain. Many private treatment records from August to October 2001 from Spectrum Orthopedics, Inc. in Ohio noted continuous neck and back pain and diagnosed the Veteran with cervicothoracic strain. The Board notes that the Veteran’s military personnel record indicates that the Veteran did not separate from the Army Reserves until January 2005, however there are only service treatment records from the 90s and pertaining to the 2001 accident in the evidence of record. Remand is needed to take all necessary action to ensure that the Veteran’s complete Army Reserves service treatment records are obtained and associated with the file. The Board also notes that a VA examination was performed for evaluating the Veteran’s neck and back conditions in March 2013. The examiner noted mild degenerative changes of both the lumbar and thoracic spine from the x-ray result. However, the examiner provided a combined medical opinion and rationale for both neck and back condition and noted that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In combined rationale the examiner stated that the Veteran’s medical records indicate a thorough evaluation following the Military Vehicle accident that included MRI and CT scans of his neck, and no significant findings were revealed on these studies. Also, the Veteran’s symptoms after accident were consistent with muscular sprain commonly found after motor vehicle accidents and a transient ulnar neuropathy cleared up with passage of time. The examiner further noted that the Veteran had implied he had no medical evaluations after the accident and presented an entirely different account of the events, which are not supported by the medical records or the Army investigation. Also, the examiner pointed that the Veteran was evaluated by Army and was found fully fit for duty. However, the Board finds the above opinion inadequate for deciding the issue on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Initially, instead of providing separate rationale, the examiner combined it for both neck and back condition, which refers and includes the findings regarding the neck condition only, whereas, Mercy Medical Center noted cervical and thoracic strain after the accident. Furthermore, the examiner did not discuss the Veteran’s lay statements and his consistent complaints of neck and back pain from August 2001 to December 2001 as indicated by private treatment records at Mercy Medical Center, Spectrum Orthopedics, and Military medical record. The Board further notes that another VA examination for the Veteran’s neck condition was performed in July 2017 and service connection for the Veteran’s neck disability was granted under August 2017 rating decision, however no other examination for the Veteran’s back condition was performed after 2013. The entitlement to service connection for the Veteran’s back condition remained denied per August 2017 supplemental statement of the case, even though per January 2017 letter from private practitioner Dr. Litz, the Veteran had mild degenerative disease of the cervical, thoracic, and lumbar spine. Hence, another VA examination is warranted for evaluating the Veteran for an entitlement to service connection for his back condition. In March 2014 notice of disagreement, February 2017 substantive appeal to the Board and during the Board hearing, the Veteran stated that he had consistent back pain since his in-service accident. The VA treatment records from 2017 to 2019 indicate Veteran reporting continuous back pain. However, the VA medical treatment records associated with the claims file are only from 2017 to 2020. Remand is also needed to take all necessary action for obtaining all outstanding VA treatment records specifically before 2017. Hence, the RO should try to contact the Veteran and request him to assist VA in obtaining all private and government treatment records. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records including records between 2001 to 2017. Request the Veteran to assist VA with locating these records, if possible. Associate these records with the claims file. 2. Request and obtain Army Reserves service treatment records, including the records after August 2001. 3. Then schedule the Veteran for a new examination to evaluate his back condition. Then, forward the claims file and a copy of this remand to the examiner for an opinion. 4. The examiner is advised to review the pertinent evidence in private, military and VA medical treatment records, the Veteran’s lay statements and his complaints of back pain. A clear rationale must be provided for all opinions expressed. The Board is asking whether it is “at least as likely as not” that the Veteran’s disability of back was incurred in or caused by the reported in-service injury, event or illness instead of certainty from the examiner. Further, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 5. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. If the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 6. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.