Citation Nr: 21067577 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-29 341 DATE: November 4, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1977 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing. A transcript of the hearing is of record and associated with the claims file. However, as set forth in an August 2021 notification letter to the Veteran, the Veterans Law Judge who conducted the hearing is no longer available to participate in the appeal. In general, the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107; 38 C.F.R. § 20.707. When a Veterans Law Judge becomes unavailable to participate in the disposition of a proceeding, VA may assign the proceeding to another Veterans Law Judge. See 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. The August 2021 notification letter explained that although the VA had a complete transcript of the hearing and was therefore able to make a decision on the record, the Veteran had a right to request another Board hearing. The letter indicated that if the Veteran did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. No response was received within 30 days of the notification letter. Thus, a new hearing is not required prior to adjudicating the instant appeal. Entitlement to service connection for a back disability is remanded. In a May 2020 Board decision, the Board remanded this issue to afford the Veteran a VA examination to determine the nature and etiology of his back condition. A VA medical examination was conducted in August 2020. First, the Board notes that at the January 2020 Board hearing, the Veteran testified that he receives Social Security and that he has been disabled since 1990. The underlying medical records have not been associated with the claims file. Remand is warranted to obtain the Social Security Administration medical records, if any. Second, turning to the medical evidence of record, the Veteran's service treatment records (STRs), as well as National Guard medical examinations and reports of medical history, note the Veteran's reports of issues including, swollen or painful joints and broken bones, treatment for severe contusions of the quads, arthritis myositis of the legs, and physical therapy. An April 1977 medical board proceeding record of the Ireland Army Hospital in Fort Knox, Kentucky reflects that the Veteran was found to have myositis ossificans left leg and lack of full motion. The Veteran was unanimously found medically unfit for further military service. The report reflects that the Veteran did not desire to continue on active duty. The Veteran's private treatment records note that he has had back fusion surgery. Post service VA medical center (VAMC) treatment records note the Veteran's active problem of chronic low back pain, from records starting in March 2009. In reviewing the lay evidence of record, at the January 2020 Board hearing, the Veteran testified that he did not have any back problems prior to service. He stated that the first time he injured his back was in March of 1977 at Fort Knox, Kentucky bootcamp. He testified that he was assigned to a barracks, but he did not know any better and went into the Sergeants barracks. When the other soldiers went into the barracks, they thought he was a Sergeant, but then the Corporal and Sergeant came in. The Veteran stated that to get back at him, the other soldiers threw him down the stairs later that night and that is how he hurt his back and legs and wound up in Ireland Army hospital for two and a half months. He testified that he was thrown from the second floor to the first floor. He stated that he did not seek immediate medical treatment but did three days later. He said that he was discharged from the hospital. The Veteran testified that he started getting treatment within a month of getting out the military and went to Talmadge Hospital in Augusta, GA and Baldwin County Hospital in Milledgeville, Georgia under the care of emergency room doctors. He said that he was also seen by Dr. L.C., a family physician in Florida when he moved in November 1991. He stated that he was never given a formal diagnosis, the swelling was just being treated, and he was given muscle relaxers for his back as they thought it was sprained. He had surgery on his back, lower back fusion, in 1990 at Macon Coliseum Hospital in Macon, Georgia. Turning to the nexus opinion of record, the Veteran underwent a VA back (thoracolumbar) examination in August 2020 and was diagnosed with lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome. The examiner also noted that the Veteran has right and left lower extremity radiculopathy sciatic radicular group. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that during service, there were no reported back injuries or issues available in the current available c-file documents. The examiner noted that based on the Veteran's current, available c-file, there were no lumbar back issues while in the service and a nexus has not been established. Here, the Board finds that the examiner failed to directly consider the Veteran's lay statement of being thrown down a flight of stairs in service and thus finds the opinion inadequate. 38 U.S.C. § 1154; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In this regard, in the May 2020 Board remand, the Board directed that the examiner specifically consider and discuss all pertinent medical evidence and lay assertions and the service treatment records, to include the Veteran's report of being thrown down a flight of stairs in service and post-service VA treatment records noting an active problem of chronic low back pain of which the examiner failed to do so. Thus, remand is warranted to obtain an adequate opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding private or VAMC treatment records and associate those records with the claims file. 2. Request all documents pertaining to any application by the Veteran for Social Security Administration disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran and his representative should be notified of such. 3. After the above development is complete, forward the claims file to the examiner that performed the August 2020 VA examination, if possible, or an available appropriate clinician to obtain an addendum opinion. The examiner is asked note review of the claims file. If upon review of the claims file, the examiner determines that an in-person examination is necessary, schedule the Veteran for a VA examination. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any back disability had its onset during active service or is related to any in-service disease or injury. In providing the requested opinion, the examiner should specifically consider and discuss all pertinent medical evidence and lay assertions and the service treatment records, to include the Veteran's report of being thrown down a flight of stairs in service and post-service VA treatment records noting an active problem of chronic low back pain. A complete rationale for all opinions is required. JENNIFER HWA 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.