Citation Nr: 21067661 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-14 128A DATE: November 4, 2021 REMANDED Service connection for a lower back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to August 1997. This matter comes before Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks service connection for a lower back condition. He specifically contends that his diagnosed back condition was caused by a 1991 parachute accident at Fort Bragg. The Veteran was afforded a VA examination to assess the nature and etiology of his lower back condition in February 2016, in which the examiner opined that it is less likely than not that the Veteran's low back condition was incurred in or was caused during service. The examiner marked that he reviewed the Veteran's service treatment records and specifically noted that these records show documentation of low back pain and treatment in December 1992, April 1993, and in one other instance in which the date is unknown. The Board notes that the Veteran's complete service treatment records are unavailable. Most recently, in December 2015, VA notified the Veteran of this and outlined all attempts to obtain these records since November 2001. However, following the February 2016 VA examination, the Veteran was able to obtain and submit service treatment records that VA had not previously obtained. Significantly, these records include June 1993 and October 1993 reports of and treatment for low back pain related to the 1991 parachute incident, an undated in-service note reporting back pain from after November 1994, and a January 1997 radiology report finding that the Veteran's L4-L5 disc space is very slightly narrowed, "which may reflect early degenerative disc disease." Because these records are relevant and were not previously considered by the February 2016 VA examiner, the Board finds that a new VA examination is warranted to ensure the Veteran is afforded an adequate examination based on an accurate medical history and with full consideration of records indicating possible continuity of symptomatology since service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("a thorough medical examination is one that 'takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."). Separately, in June 2019, the Veteran submitted an opinion from his private provider, which concluded that his lower back condition, including lumbar spondylosis, was "most likely caused by or a result of parachute accident 1991 (exact date of accident not in medical records)." His private provider marked that he reviewed service treatment records dated September 1992, December 1992, February 1993, and April 1993, but did not mark that he reviewed the Veteran's post-service treatment records. On remand, the VA examiner should discuss this private opinion and reconcile it with his/her findings, if needed. Finally, the Board notes that pertinent VA treatment records may be outstanding. Specifically, the claims file contains Tampa VAMC treatment records from May 2001 to September 2016 and a single VA radiology record from February 1999. The February 1999 record is listed as related to an emergency room walk-in, details findings from a lumbar spine x-ray, and includes the Veteran's clinical history as "INVOLVED IN M.V.A. TODAY." However, there are no additional VA treatment records related to a February 1999 emergency room visit. Because all VA treatment records are within VA's constructive possession and are considered potentially relevant to the claim on appeal, remand is also necessary to obtain these records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from February 2016 to present. 2. Obtain and associate with the claims file all treatment records from Tampa VAMC prior to May 2001, which may involve searching paper records. Document all searches of archived/retired paper records, including any negative responses. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Send the Veteran a letter requesting that he provide authorization allowing VA to obtain treatment records from the provider who submitted the June 2019 nexus opinion. If reasonable efforts to obtain the records are unsuccessful, notify the Veteran in accordance with 38 C.F.R. § 3.159(e)(1) and provide him with a reasonable amount of time to personally submit the records. 4. DO NOT SCHEDULE THE FOLLOWING until the above records have been obtained, to the extent possible. 5. Schedule the Veteran for a new VA examination to assess the nature and etiology of his lower back condition. After a complete review of the claims file, specifically including the Veteran's lay statements and service treatment records, the examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's lower back condition began during or is otherwise related to service? In making this opinion, the examiner must address, and reconcile, if needed, the June 2019 private opinion determining that the Veteran's current lower back condition was "most likely caused by or a result of [the] parachute accident [of] 1991." All opinions must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.