Citation Nr: 21065219 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-05 971 DATE: October 25, 2021 REMANDED Entitlement to service connection for back condition is remanded. Entitlement to service connection for chronic bronchitis is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from December 1983 to December 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in February 2019. A transcript of the hearing is of record. Subsequently, the Board remanded the Veteran's claims of entitlement to service connection for back condition and chronic bronchitis in July 2019 for further development. In July 2019, the Board also remanded the Veteran's claims of entitlement to service connection for tinnitus and bilateral lower extremity neuropathy. Following the issuance of the August 2020 supplemental statement of the case denying these claims along with the Veteran's claims for back condition and chronic bronchitis, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), opting only the Veteran's tinnitus and bilateral lower extremity neuropathy claims into the modernized review system. As such, a separate decision addressing the tinnitus and bilateral lower extremity neuropathy claims will be issued under a separate docket number pursuant to the modernized review system. 1. Back Condition The Board regrets the additional delay; however, a review of the record illustrates that there may be outstanding private treatment records that may be relevant to the Veteran's claim. Following the July 2019 Board remand, in June 2020, the Veteran submitted a VA Form 21-4142, Authorization for Release of Information for records from C.H., a private chiropractor. The release reflects the Veteran received treatment with Dr. C.H. from October 27, 2004 to March 12, 2008. In a June 2020 correspondence, VA informed the Veteran that VA requested the records from Dr. C.H. A July 2020 Report of Contact details that VA closed out the request for records on July 7, 2020. A journal entry in the Report of Contact dated July 7, 2020 reflects that VA received correspondence from the office where Dr. C.H. was formerly employed stating that there are no records for the dates requested on the VA Form 21-4142 but indicating that there are records for the Veteran from 2011. Furthermore, the journal entry from July 7, 2020 reflects that "no exception could be made and was advised to resubmit a new request with the dates of treatment listed as January 31, 2011 to April 11, 2011." Per VA regulations, VA must notify the Veteran of any records that VA is unable to obtain, an explanation of the efforts made to obtain the records, a description of any further action VA will take regarding the claim, and that the Veteran is ultimately responsible for providing the evidence. See 38 C.F.R. § 3.159(e). Here, there is no indication in the record that VA informed the Veteran of the need for an additional VA Form 21-4142 for the records from Dr. C.H. with the dates of treatment listed as January 31, 2011 to April 11, 2011. The Board acknowledges that VA made multiple requests for the records; however, as the response from Dr. C.H.'s office indicates that there are records outstanding for the Veteran during a different time period that may be pertinent to his claim, the Board finds that remand of this claim is required to allow the Veteran to complete an additional VA Form 21-4142 for records from Dr. C.H. for the period of January 31, 2011 to April 11, 2011, and to allow VA to again request the records. If any of the records requested are unavailable, VA is to clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). In addition, following the July 2019 Board remand to obtain a VA opinion as to whether the Veteran's current back condition is directly related to his service, a VA examiner opined in July 2020 that the Veteran's back condition is less likely than not related to his service. Although as part of the rationale the examiner noted that the Veteran reported that he fell on his back during service, the rationale focuses on the lack of in-service treatment for a back condition, including the December 1987 separation examination being silent for swollen or painful joints. Furthermore, the examiner provided no rationale as to whether the Veteran's current back condition is related to his service, irrespective of the lack of in-service documentation of a back condition. Thus, an additional VA opinion is needed upon remand. 2. Chronic Bronchitis Following the July 2019 Board remand to obtain relevant treatment records from Dr. W.F., records from Dr. W.F. were added to the claims file in July 2020. The records contain a September 2017 diagnosis of acute bronchitis. As no VA examiner has opined whether the Veteran's bronchitis is related to his service, including exposure to extreme cold at Chanute Air Force Base in 1984, a remand is required to obtain such opinion. The matters are REMANDED for the following actions: 1. Request that the Veteran submit a fully completed and signed VA Form 21-4142, Authorization and Consent to Release Information to VA, for each health care provider from whom he would like VA to obtain records, to include from C.H. for dates of treatment from January 31, 2011 to April 11, 2011. Inform him that the January 2011 and June 2020 21-4142s have expired and contain different dates of treatment. In addition, inform the Veteran that the prior 21-4142s can no longer be used to obtain the records and that in order for VA to obtain the records he must submit a new 21-4142 for records from January 31, 2011 to April 11, 2011. Based on the Veteran's response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Obtain updated VA treatment records from August 2020 to the present. 3. After completing the development requested in items 1 and 2 above, obtain a medical opinion from a qualified clinician for the Veteran's back condition claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's back condition is related or attributable to his military service, to include his reported in-service fall where he hit the tailgate while on a hydraulic lift, and irrespective of there being no documentation of in-service treatment for any back condition? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the development requested in items 1 and 2, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any chronic bronchitis. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Does the Veteran have a diagnosis of chronic bronchitis or any symptoms of a respiratory condition that cause functional impairment of earning capacity? In addressing this, the examiner is requested to consider the September 2017 diagnosis of acute bronchitis. (b.) For any diagnosed bronchitis condition/functional impairment of earning capacity, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service, to include his report of exposure to extreme cold at Chanute Air Force Base in 1984? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.