Citation Nr: 21005058 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-20 158A DATE: January 28, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability to the lumbar spine (claimed as back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1973 to March 1976. Unfortunately, during the pendency of the appeal, the Veteran passed in September 2019. The appellant is his surviving spouse and has been substituted as the claimant in the matter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, and now the appellant, contends that the Veteran fell during a VA examination on November 18, 2010, and sustained an additional back disability due to carelessness by the examiner. The matter appeared before the Board in May 2018 and October 2019, at which time the Board remanded to the RO to obtain missing documents and a VA addendum medical opinion. The Board finds that an additional remand is necessary. Although progress notes were obtained from the November 18, 2010 examination, pertinent incident reports from that date have yet to be associated with the claims and a formal finding has not been issued as to these incident reports. See Stegall v. West, 11 Vet. App. 268 (1998). In the most recent October 2019 Board remand, the Board directed that the RO obtain all pertinent VA records, including all incident reports completed by the November 2018 examiner, the medical support assistant(s), and any record created by the patient advocate M.H. concerning the incident (the Veteran’s fall). The Board notes that in a November 2010 statement, the Veteran stated that a nurse and two male attendants were called to assist him during his fall. Although the RO conducted additional development and associated with the claims progress notes from a physician assistant, a registered nurse and the examining physician of November 18, 2020 from W.G. Hefner Salisbury VA Medical Center (VAMC), these records are only progress notes, and even refer to incident reports as having been created, which have not been associated with the claims file. Moreover, neither has the incident report from the patient advocate been obtained. Further, even if the records are unavailable, the Board directed the RO to issue a formal finding noting such, which is not of record, and to provide notification to the appellant, which a record of such is not associated with the claims file either. Hence, the RO is not in substantial compliance with prior Board remands. See Stegall, 11 Vet. App. at 271. Thus, a remand is necessary to conduct additional development in compliance with prior Board directives. The Board further notes that in a November 2020 statement, the appellant indicated the records related to the incident may be at the Winston-Salem VAMC. Clarification is required as to whether there exist any further records at any additional VAMC in the surrounding area. The matter is REMANDED for the following actions: 1. Obtain and associate with the record all outstanding pertinent VA records, including all incident reports completed by the examiner, any other persons assisting the Veteran, and any record created by the patient advocate Mark Holmes concerning the incident that occurred during the Veteran’s November 18, 2010 VA examination. The Board notes that the appellant has suggested records to be Winston-Salem VAMC. The record should include all determinations as to whether additional records are located at the Winston-Salem VAMC and efforts must be made to obtain any pertinent records from that facility. All attempts to secure this evidence, to include any negative response, must be documented in the claims file. In compliance with 38C.F.R. §3.159(c) (2), the RO must make as many requests as are necessary to obtain records in the custody of a Federal department or agency and shall not end its efforts to obtain those records unless it concludes that the records sought do not exist or that further efforts to obtain those records would be futile. If, after all procedurally appropriate actions to locate and secure the records have been made and the RO concludes that such records do not exist, that further efforts to obtain the records would be futile, the RO must make a formal finding to that effect. The RO must notify the Veteran of (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38C.F.R. §3.159(e). The Veteran must then be given an opportunity to respond. 2. If, and only if, the RO is able to obtain the above-mentioned evidence, return the claims file to the October 2020 VA examiner to obtain an addendum medical opinion to address whether the Veteran sustained additional disability to his lumbar spine related to his fall in November 2010 during the Compensation and Pension Examination for his lumbar back condition. The clinician should specifically address the following: (a) Did the Veteran sustain “additional disability” to his lumbar spine due to his fall during VA examination in November 2010? If so, the additional disabilities should be clearly identified. If there is no “additional disability,” then the clinician does not need to provide an answer to (b) but must provide a comparison of the Veteran’s condition prior to the fall and after the fall to support the conclusion of “no additional disability.” (b) If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that the proximate cause of such disability or disabilities was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Address the suggestion that “fault on the part of VA” is demonstrated by the examiner’s failure to obtain additional help in assisting the Veteran with transferring locations. 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; it 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, the clinician should so indicate and discuss 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. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.