Citation Nr: 21068159 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-30 632 DATE: November 9, 2021 REMANDED Service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1980 to June 1983. The Veteran testified before the undersigned Veterans Law Judge during an August 2021 hearing and a transcript is of record. This matter is on appeal from a February 2017 rating decision. 1. Service connection for a low back disability is remanded. The Veteran's service personnel records have been associated with the claims file, but not his service treatment records. The Veteran has reported that he frequently sought treatment for low back symptoms during his active duty service and was hospitalized at least once. On remand, the Agency of Original Jurisdiction should attempt again to obtain the Veteran's service treatment records, including hospital records, which are sometimes stored separately from service treatment records. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in May 2017. The clinician provided an unfavorable opinion that relied on a lack of records documenting treatment during and after his active duty service. This is not a requirement found in the law, particularly when, as in this case, the Veteran's service treatment records are currently missing. For this reason, a remand is warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records, including any records of the Veteran's inpatient treatment for a low back injury in 1980 or 1981. Inpatient hospitalization records are sometimes stored separately from service treatment records. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified; this notice should advise the Veteran to submit any copies of these records he might have in his possession. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's low back disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current low back disability began in service, was caused by service, had its onset within one year of the Veteran's separation from active duty service, or is otherwise related to his active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the Veteran's reports of the onset and continuity of his symptoms in statements submitted with his July 2016 claim, his March 2017 Notice of Disagreement, and his May 2017 substantive appeal (VA Form 9), as well as his testimony during the August 2021 hearing, including his explanation for any gaps in treatment. The rationale for any opinion expressed should be provided. Note that the Veteran's service treatment records may be missing and that a lack of documented treatment during or after service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page) 4. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.