Citation Nr: 21061269 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-30 216 DATE: October 1, 2021 REMANDED Entitlement to service connection for back pain is remanded. Entitlement to service connection for pain in the back of the head is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1969 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision. The Veteran testified before the undersigned during an October 2017 hearing. This matter was previously remanded by the Board in May 2018 and November 2019. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for back pain is remanded. The November 2019 Board remand directed the RO to obtain a medical opinion regarding the nature and etiology of the Veteran's back disability. In this regard, the VA examiner was directed to address (1) the Veteran's October 1970 service treatment record reflecting back pain, and (2) medical opinions provided by the Veteran's treating physician in 2012 relating his back pain to trauma in service. The VA provided the Veteran with an examination in January 2020; however, the VA examiner did not address these records. Thus, remand is warranted to ensure compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the January 2020 VA examination is inadequate because, in providing a rationale, the VA examiner improperly disregarded the Veteran's lay statements that an injury incurred when an officer jumped out of a tree onto his back during a training exercise and that he obtained treatment in the years following his discharge from service solely on the basis that such symptoms were not recorded in the Veteran's contemporaneous medical records. 2. Entitlement to service connection for pain in the back of the head is remanded. Pursuant to the November 2019 Board remand, VA provided the Veteran with an examination in January 2020 which the Board finds to be inadequate for the following reasons. First, in providing a rationale, the VA examiner improperly disregarded the Veteran's contention of chronic head pain in the back of his head that comes and goes once or twice per day since an in-service motor vehicle accident in 1970 or 1971 solely on the basis that such symptoms were not recorded in the Veteran's contemporaneous medical records. Second, the VA examiner provided no rationale for their opinion regarding secondary service connection. Third, the VA examiner did not address aggravation in providing an opinion regarding secondary service connection. See 38 C.F.R. § 3.310; see also Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of "not due to," "not caused by" and "not related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b)). Accordingly, remand for a new VA opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an opinion from a qualified clinician, preferably one who has not previously opined about the Veteran's claim, to determine whether the Veteran's back disability is related to his military service. The Veteran should only be scheduled for an examination if deemed necessary by the examiner. Following a review of the claims file, and an examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability began in or is otherwise caused by the Veteran's active service. In doing so, the examiner must address (1) the Veteran's July 1970 and October1970 service treatment records reflecting back pain, (2) the Veteran's contention that his back pain started after an in-service injury incurred when an officer jumped out of a tree onto his back during a training exercise, (3) the Veteran's contention that his back pain started during service as a result of carrying heavy equipment, (4) the Veteran's contention that he has suffered from back pain since his time in service, (5) the Veteran's statements that he obtained treatment for his back disability in the years immediately following his discharge from service, the records of which are unavailable, (6) the medical opinions provided by the Veteran's treating physician in 2012 relating his back pain to trauma in service, and (7) the July 2018 VA psychology treatment record that reflects that the Veteran had back surgeries resulting from in-service injuries. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion from a qualified clinician, preferably one who has not previously opined regarding the Veteran's claim, to determine the nature and likely etiology of the Veteran's head pain. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all disabilities etiologically related to the Veteran's head pain found during the period on appeal, even if now asymptomatic or resolved. For each disability related to the Veteran's head pain that is identified during the period on appeal the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service. In addition, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's back disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's disability related to his head pain prior to aggravation by his back disability. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing these opinions the VA examiner must address (1) the Veteran's contention that he has suffered from head pain since an in-service injury incurred when an officer jumped out of a tree onto his back during a training exercise, (2) the Veteran's contention that he has suffered from chronic head pain in the back of his head that comes and goes, once or twice per day, since a 1970 or 1971 motor vehicle accident in service, (3) the Veteran's statements that he obtained treatment for his head pain in the years immediately following his discharge from service, the records of which are unavailable, and (4) the medical opinion provided by the Veteran's treating physician in August 2019 relating the Veteran's head pain to his time in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.