Citation Nr: 21066307 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-04 909 DATE: October 29, 2021 REMANDED 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a right hip disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1954 to April 1957, and from July 1957 to June 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision which, in relevant part, denied service connection for degenerative disc disease (DDD) (claimed as low back arthritis) and a right hip disability. In June 2018, the case was remanded for additional development. In September 2020, the Board denied the claims. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a July 2021 Joint Motion for Remand (JMR) by the parties. A July 2021 CAVC Order remanded the matters for compliance with the JMR instructions. 1., 2. Entitlement to service connection for low back and right hip disabilities In the July 2021 JMR, the parties agreed that the Board failed to address whether VA satisfied its duty to assist by obtaining VA medical records. The parties cite to the September 10, 2019 supplemental statement of the case (SSOC), which notes "no current records found" from VAMC Fresno. However, in a September 30, 2019 statement, the Veteran reported that the VA must have lost his supporting documents because when he went for treatment at the Fresno VAMC, he could not stand erect. The parties agreed that there is no indication such records have been associated with the claims file, and agreed the Board failed to discuss whether VA's duty to assist had been satisfied regarding the VAMC Fresno records. [The Board notes that in an August 2000 statement, the Veteran reported that he was an inpatient at VAMC Fresno in April 1985 and "continued as an outpatient for five or six years thereafter." He also reported that he was seen there once between the mid-1990's and 2000. He apparently then moved from the region in 2003. See July 2003 VA examination report.] Review of the record shows some treatment records from the Fresno VAMC (dated in March 1985 and July 2003) and from the VA Central California Health Care System (dated 1999). However, it is unclear whether all available treatment records from the Fresno VAMC have been associated with the record. Accordingly, remand to attempt to obtain any outstanding Fresno VAMC treatment records is necessary, as such records may contain pertinent information and are constructively of record. The parties to the JMR also agreed that the Board failed to account for the Veteran's September 2019 statement in its analysis pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, they agreed that the Board failed to address whether his September 2019 statement (that he could not stand erect when he arrived at the Fresno VAMC, and that a treating doctor told him that "the military must have worked me hard as my condition was severe") "met the low threshold as evidence that 'indicates' that there 'may' be an association" between his current condition and service, pursuant to McLendon. Although the Board, in its September 2020 decision, found that such statement does not rise to the level of nexus evidence (and that VA was not obliged to obtain a nexus opinion), the parties to the JMR agreed that "remand is warranted for the Board to account for [the Veteran's] September 2019 statement in its analysis pursuant to McLendon." Considering the agreement by the parties regarding the significance of the Veteran's account, the Board finds that the "low threshold standard" in McLendon is met. Accordingly, an examination to ascertain the nature and likely etiology of the Veteran's claimed low back and right hip disabilities is also necessary. The matters are REMANDED for the following: 1. Secure for the record complete, and updated (those not already associated with the record) records of all VA examinations/treatment the Veteran has received for his claimed low back and right hip disabilities, including specifically all records of treatment at Fresno VAMC from 1976 to July 2003. The search should encompass all storage facilities where such records may have been retired. If the records cannot be located because they are irretrievably lost or destroyed (or did not exist), it should be so certified for the record, the scope of the search should be described in detail, and the Veteran should be so notified. 2. Following completion of the development sought in #1, above, arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his claimed low back and right hip disabilities. The entire record (to include this remand and any records obtained pursuant to the development above) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a) Identify (by diagnosis) each low back and right hip disability found/shown by the record during the pendency of the instant claims. b) Identify the likely etiology for each low back and right hip disability diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disabilities were incurred during the Veteran's active service? The rationale for the opinions provided must acknowledge (reflect consideration of) that the Veteran participated in heavy labor and lifting in service by virtue of his MOS of Fire Protection Specialist/Chief and Munitions Maintenance Technician/Supervisor, as well as personnel records showing he worked in/supervised the loading of munitions/bombs. The examiner must include rationale for all opinions, citing to supporting factual data and medical literature/treatise as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.