Citation Nr: 21002891 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-32 254 DATE: January 19, 2021 REMANDED Entitlement to service connection for chronic back pain is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran’s Law Judge and the transcript of the hearing is of record. This matter was previously before the Board in September 2019. At that time, the Board remand the claim for additional development. The matter has now come back before the Board for adjudication. 1. Chronic Back Pain The claim of entitlement to service connection for chronic back pain must be remanded for additional development, as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the Board’s prior remand directives for this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2019, the Board remanded this claim for additional development. Specifically, the Board’s remand directed the RO to obtain private medical records from Dr. K. The directive instructed the RO to “[m]ake two requests for the authorized records unless it is clear after the first request that a second request would be futile.” See September 2019 Board Decision. In addition, the Board directed the RO, if deemed necessary, to obtain an addendum medical opinion from the April 2018 VA examiner. The VA examiner was directed to address whether it was at least as likely as not that the Veteran’s chronic back pain was related to his active service. The VA examiner was also directed to consider the Veteran’s private treatment records, to include the record from Dr. K. See id. Unfortunately, the Board finds that the RO did not obtain the private treatment records from Dr. K nor did the RO make two requests for the authorized records. The Board notes that the Veteran attempted to provide the VA with the VA Form 21-4138 for medical records from Dr. K. but for some reason the attempted fax could not be completed. See December 2019 Correspondence. Notably, the Veteran submitted a letter to Dr. K. requesting his medical treatment records. See September 2019 Correspondence. The Board finds the RO did not make reasonable efforts to help the Veteran obtain the medical records from Dr. K., to include assisting the Veteran in submitting the VA Form 21-4138. The Board notes that the Veteran attempted to submit the required VA form to allow the RO to obtain the private medical records. Unfortunately, the Veteran and his representative were unable to fax the VA Form 21-4138 to the VA. See December 2019 Third Party Correspondence. Thereafter, the RO failed to take any action to assist the Veteran. In addition, the Board finds the RO did not follow up with the Veteran or his representative regarding the private medical records from Dr. K. or make another request to the Veteran for the records. The Board finds that making an additional request could have produced the necessary records as there is no evidence that the records are unavailable. Therefore, the Board finds that the RO failed to complete the prior Board directive. Next, the Board notes that the RO obtained an addendum medical opinion in January 2020. Unfortunately, the Board finds this medical opinion is inadequate. First, the VA examiner stated that the above mentioned records were reviewed, wherein the examiner reported that he had reviewed the private treatment records from Dr. C.R. and Dr. K. See January 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). As addressed above, however, the private treatment records were not obtained from Dr. K.; therefore, the VA examiner could not have reviewed these private treatment records. Second, the VA examiner stated “I reviewed the above mentioned records. It does not alter my opinion of 4/24/18.” See id. The Board finds this statement is not a medical opinion. While the VA examiner states his prior April 2018 VA medical opinion is unaltered, the Board finds that the VA examiner should have completed a rationale to support his opinion as the original VA medical opinion from April 2018 did not include nor address the medical evidence received after April 2018, to include the private treatment records from Dr. C.R. Therefore, the Board finds that a remand is warranted to comply with the prior Board remand directives. As such, for the above reasons, this matter must be remanded. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA and/or private treatment records. (a.) Request the Veteran to complete a VA Form 21-4142 for any private records that pertain his chronic back pain, PARTICULARLY FROM DR. K. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. Please document all attempts in the record. i. The RO should make two requests to the Veteran as well as to the private medical facility. 2. After the above is completed, the RO should schedule the Veteran for a VA examination with a different physician to determine the etiology of the Veteran’s chronic back pain. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. The RO should consider acceptable clinical examination (ACE). Access to the claims file must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a.) The examiner should provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s chronic back pain is related to his active service. i. If yes, why? ii. If no, why not? (b.) The examiner should report on the Veteran’s current symptomatology and address whether the Veteran’s reported pain results in any functional impairment. i. If yes, why? ii. If no, why not? (c.) The examiner should report on whether the chronic back pain the Veteran currently suffers from is the same as what he suffered during service. i. If yes, why? ii. If no, why not? The examiner should also be aware that in rendering an opinion, it must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). (d.) The examiner should address the findings of the September 11, 2014 examination findings as it pertains to short leg syndrome. 1. If the examiner determines that this exists, the examiner should determine if this is congenital. If congenital, the examiner should discuss if it is a disease or defect. If it is a disease, the examiner should discuss if it clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated by service. The examiner should also discuss if the back pain is a superimposed disability over the congenital disability. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.