Citation Nr: 21003771 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-16 448 DATE: January 22, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1981 to July 1984, and also has additional inactive duty service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By way of background, the Veteran’s claim for service connection for a lower back disorder was first before the Board on March 31, 2016, at which time the claim was denied. This adjudication was vacated by an April 13, 2017 Joint Motion for Remand (JMR) granted by the Court of Appeals for Veterans Claims (Court). The Veteran’s claim was then remanded for a second time on April 18, 2018, and then most recently, for the third time, on May 19, 2020. See BVA Remands (Mar. 31, 2016; Apr. 18, 2018; May 19, 2020); Court JMR (Apr. 13, 2017). The Veteran was issued a Supplemental Statement of the Case (SSOC) in August 2020. The Board accordingly reasserts jurisdiction of the claim. Unfortunately, the Board concludes that a further remand is required, for the reasons to be articulated below. The Board sincerely regrets the additional delay that will ensue; however, the Board is ultimately precluded from issuing a final determination at this time. The Veteran’s attorney requested a 60 day extension of time to submit additional evidence and argument in an August 2020 submission. The Board granted this Motion for Extension of Time in October 2020. This requested extension of time has expired and the Veteran’s attorney submitted additional argument in support of this appeal in November 2020. 1. Entitlement to service connection for a lumbar spine disorder is remanded. In sum and substance, the Veteran’s claim was most recently remanded in May 2020, see BVA (Third) Remand (May 19, 2020) because the then-most recent VA examination was deemed inadequate. See id. at Pages 1-2; see also VA Exam ( Sept. 17, 2019 ); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran’s claims file was then forwarded to a new examiner in July 2020, who provided a negative nexus opinion. See VA Exam ( July 24, 2020 ). The Board determines that the July 2020 examiner’s negative nexus opinion appears to be based upon inaccurate factual premises, see Reonal v. Brown, 5 Vet. App. 458 (1993); therefore, it is afforded no probative weight. The examiner appears to have indicated that the Veteran’s service treatment records merely contain one mention of a 1982 motor vehicle accident and one other notation of back pain in 1983. See VA Exam (July 24, 2020), at Question No. 3 et seq. Notwithstanding the fact that the Veteran’s initial complaint of pain appears to have lasted at least two weeks and may have resulted in light duty profiles and chronic pain thereafter, see, e.g.: Correspondence (rec’d May 8, 2014 ); STR ( July 23, 1983 ), the Veteran later complained of lower back pain on at least three occasions in July and August 1983. See STR ( July 23, 1983 ; July 25, 1983 ; Aug. 13, 1983 ); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding an examination inadequate where the examiner did not comment on veteran’s report of an in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Additionally, even though the examiner claimed that the Veteran’s post-service medical records were silent for symptoms of back pain until 2008, the Board notes that a July 2008 notation states that back pain had onset two years prior, while an August 2008 notation states that back pain only had onset three months prior. See Medical Treatment Records Furnished by SSA ( July 17, 2008 ; Aug. 11, 2008 ). These medical records should be associated with the claims file, to the extent that they exist; regardless, the examiner does not appear to fully consider the evidence of record, including but not limited to pertinent lay statements. Additionally, there is insufficient explanation as to whether these two back injuries, of seemingly different chronology, are separate injuries or the same injury. Finally, the Board notes that whereas the August 2020 SSOC identifies a negative search for treatment records within the VA health care system among evidence considered, there is no such negative search result apparent within the record. Notwithstanding any other reason mentioned above, the Board would be precluded from issuing a final determination for this reason alone, because the Veteran is entitled to substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, a remand is required to obtain an addendum opinion. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private, VA treatment, inactive duty with line of duty determinations, or active duty records relevant to the claims on appeal, namely claims for a lower back disorder. After obtaining any necessary authorization from the Veteran and his attorney, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources, including but not limited to January 1982 records from an emergency room in Tyler, Texas, prescribed bed rest by Dr. S.H., purported evidence of communications between the Red Cross and the Veteran’s regiment in January 1982 to communicate the Veteran’s injuries, and a once-weekly chiropractor in or about June 2018. If any such records are unavailable, inform the Veteran and his attorney, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. No VA medical records appear to be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for all appropriate VA examinations to determine the nature and etiology of the Veteran’s claimed lower back disorder. A complete copy of the claims file, to include this remand, the Veteran’s complete service treatment records, and the Veteran’s complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. The examiner is asked to respond to the following question: For each diagnosed lumbar spine, is it at least as likely as not (50 percent or greater probability) that each such disorders had onset in service or is otherwise related to his active duty service or else his inactive duty service with a corresponding line of duty determination? A discussion of all applicable evidence of record would be helpful, including but not limited to the following: (A) STR notations dated March 1982 (evincing a motor vehicle accident), July 23, 1983 (evincing back pain lasting three days), and August 13, 1983 (evincing other back pain); (B) The Veteran’s and family members’ lay statements recounting the Veteran being treated in a Tyler, Texas emergency room in or about January 1982, and his confinement to bed rest for four days as treatment, despite the apparent unavailability of these records due to the physician’s retirement, see, e.g.: VA Form 21-4138 (rec’d May 28, 2010); see also Correspondence (rec’d May 8, 2014); (C) A SSA Medical Record notation that back pain was recorded post-service as having an onset of two years relative to July 2008 treatment; (D) A post-service medical record notating a “many-year history of intermittent chronic lower back pain with two-year history of cramping sensation” dated August 2008. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.