Citation Nr: 21067773
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 15-11 183
DATE: November 5, 2021

REMANDED

Entitlement to service connection for a back disorder is remanded.

Entitlement to service connection for hypertension is remanded.

REASONS FOR REMAND

The appellant served on active duty for training in the United States Army from June 1980 to September 1980, with additional National Guard service.  

These appeals were most recently remanded by the Board in July 2020, in part to verify the appellant's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  Although a request for such information was made that same month, the September 2020 reply was unresponsive to the request and no follow-up efforts were made.  Thus, there has not been substantial compliance with this remand directive and the appeals must again be remanded for this purpose.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Also in July 2020, the Board instructed that a series of VA nexus opinions be obtained.  Although such opinions were provided in May 2021, they are wholly inadequate upon which to adjudicate these appeals, as they are predicated upon unknown dates of service.  Consequently, new opinions are required following the above clarification.

The matters are REMANDED for the following actions:

1. After conducting any necessary development, provide a memorandum identifying the exact nature and dates of the Veteran's military service, including all periods of active duty and ACDUTRA/INACDUTRA.  

The RO is notified that simply associating the appellant's personnel records is not sufficiently responsive to this remand directive.  Rather, an actual memorandum is required on this point.

2.  Obtain addendum opinions from an appropriate examiner regarding the etiology of the claimed back and hypertension disorders.  The need for a new VA examination is left to the discretion of the VA examiner.  

The claims file and a copy of this remand must be made available for review.

In particular, each examiner is asked to offer a medical opinion as to:

a. Is it at least as likely as not (probability of 50 percent or greater) that any diagnosed back/hypertension disorder:

i. Onset within one year of military separation (if diagnosed with arthritis or hypertension);

ii. Began in, was caused by, or is otherwise related to a period of active duty or ACDUTRA;

iii. Was caused or aggravated by an injury during a period of INACDUTRA; or

iv. If the examiner determines that any of the relevant disorders arose between his periods of active service or ACDUTRA, the examiner must also address whether the condition was at least as likely as not (50 percent probability or more) aggravated by a subsequent period of service.

The back examiner must explicitly address the appellant's lay statements, and the positive nexus opinions of record.

The hypertension examiner must explicitly address the appellant's treatment for hypertension during service in the National Guard and their relevance to the question of whether hypertension had its onset during any periods of ACDUTRA, and the positive opinion of record.

In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

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A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the appellant is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Kovarovic, 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.