Citation Nr: 21067770 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 99-24 518 DATE: November 5, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army Reserves, including two periods of active duty for training (ACDUTRA) from May 1966 to September 1966 and August 1968 to September 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 1999 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was most recently denied by the Board in a June 2019 decision. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a March 2021 Memorandum Decision, vacated and remanded the claim for further development and adjudication. To ensure compliance with the terms of the Court Order, the Board finds that remand is again needed before a decision may be rendered on the claim. 1. Entitlement to service connection for a back disability is remanded. The Veteran has contended that his current back disability is the result of his active service. By history, he experienced a football-related back injury in high school, prior to service, and underwent physical therapy. The December 1965 pre-induction examination reflected a normal spine and no reports of a prior injury. At the end of his first period of ACDUTRA, an August 1966 examination indicated a normal spine and the Veteran himself denied recurrent back pain. Prior to his second period of ACDUTRA, while not on active or inactive duty for training, the Veteran fell off of a civilian truck in approximately March or April 1968. Private treatment records beginning in June 1968 documented the injury. No entrance examination was conducted at the beginning of the Veteran's second period of ACDUTRA in August 1968. He has stated that during that period of ACDUTRA he slept on the ground and rode in the back of a rough truck for a prolonged period with a back brace, aggravating his back condition. In September 1968, it was determined that he was temporarily medically disqualified from service due to a chronic low back strain and herniated disc. Post-service records indicated ongoing back complaints; diagnoses of herniated nucleus pulposus, acute lumbosacral strain, spondylolisthesis, and degenerative disc disease; and continued treatment for back pain. There are also notations of additional injuries, including a tire lifting injury in April 1986, an automobile accident in 1991, and a work-related back injury in May 2003. Several medical opinions have been obtained to determine the etiology of the Veteran's current back disability, including VA examinations in November 1998, November 2010, and October 2016; a December 2017 expert medical opinion; and January 2019 addendum opinion. As noted by the Court, the VA and independent medical opinions of record indicated that the Veteran's back complaints began post-service in 1999. However, there are other post-service indications in the claims file of back symptomology prior to 1999. As the opinions were based on an inaccurate factual premise, a new VA examination and opinion are needed to consider the entirety of the evidence and provide an opinion regarding etiology. Additionally, the Veteran's representative has identified private treatment records which may be relevant to his claim. As such, attempts to obtain the outstanding records should be made upon remand, as well. The matters are REMANDED for the following action: 1. Request that the Veteran submit necessary authorizations and releases for relevant and outstanding records of private medical treatment, specifically to include records from Butler Hospital from 1974 to 1998 including full records surrounding the order of lumbar x-rays in 1978 and 1981, and records from Drs. M. and S. who referred the Veteran for x-rays. If he does not submit the necessary authorizations and releases, request that he submit the records to VA himself. 2. Schedule the Veteran for a new VA examination with an appropriate VA clinician to determine the nature and etiology of his claimed back disability. Following a review of the claims file and any clinical testing deemed necessary, the examiner is asked to address the following: (a.) Whether it is at least as likely as not that the claimed back disability is etiologically related to the Veteran's military service. In particular, was any chronic back disability that existed prior to August 31, 1968, at least as likely as not permanently aggravated beyond the natural progress of the pathology during the ACDUTRA period from August 31, 1968, to September 14, 1968. Specifically, does the symptomology described in the October 1968 treatment record immediately following the ACDUTRA period indicate a permanent aggravation of the severity of the back disability beyond the natural progression of the disability? (b.) The examiner should specifically address: 1. The reported high school football injury prior to ACDUTRA; 2. The March or April 1968 injury from falling off a civilian truck between periods of ACDUTRA; 3. The Butler Hospital notations beginning in June 1968 regarding the Veteran's back complaints between periods of ACDUTRA; 4. The September 1968 determination that the Veteran was temporarily medically disqualified from service due to a chronic low back strain and herniated disc; 5. The October 1968 notation from a private clinician that the Veteran reported that his condition was worse following Reserve Training and lying on the ground, resulting in numbness and pain in his entire right leg; 6. The May 1969 notation of evidence of herniated nucleus pulposus and recommendation of discharge from service; 7. The January 1976 diagnosis of acute lumbosacral strain and spondylolisthesis; 8. The September 1978 x-ray indicating a normal lumbar spine; 9. The March 1981 x-ray indicating a normal lumbar spine; 10. The April 1986 diagnosis of acute low back sprain; 11. The June 1991 CT scan of the back demonstrating mild osteoarthritis and degenerative disc disease at the L5-S1 level; 12. The April 1993 notation of low back pain; 13. The December 1996 notation of low back pain; 14. The November 1998 VA examination results; and 15. Any other relevant and subsequent records of treatment for a back disability. (c.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If medical literature is relied upon in rendering this determination, the examiner should identify and specifically cite each reference material used. (d.) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Ensure that the examination report is associated with the claims file. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.