Citation Nr: 21068301 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-23 225 DATE: November 9, 2021 REMANDED Service connection for osteoarthritis of the low back. Whether new and material evidence has been submitted to reopen a claim for a left hip disorder and, if so, whether service connection should be granted. REASONS FOR REMAND The Veteran served on active duty from September 1969 to July 1973, with additional service in the National Guard and Army Reserve. These claims are on appeal from rating decision issued in April 2012. In July 2017, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge. The Board previously remanded these matters in March 2018. 1. Service connection for osteoarthritis of the low back. The Veteran contends that he has a low back condition due to three events during service. First, in 1971, he hurt his back. Board Hr'g Tr. 3. Second, in 1977 or 1978, he was in Germany for three weeks as a tank commander in a "113." Board Hr'g Tr. 5. He was in tank commander's position when the vehicle hit a tree. Id. This snapped off the top 20 or 30 feet of the tree, which fell and hit the Veteran on the top of the helmet and pushed him down into the cupola. Id. He was medevac'd to the hospital. Id. Third, and finally, he reinjured his back in 1991 or 1992 on active duty when he stepped into a foxhole and landed flat-footed. Board Hr'g Tr. 4. This caused him to fall, which jolted him "all the way up to the neck." Board Hr'g Tr. 4-5. He has also stated that his back pain has continued since he was released from service. See, e.g., 5/24/2019 VA Spine examination. The Board observes that the first two events are documented in the available service treatment records (STRs). First, in January 1971, he was treated for back pain, thoracic region, after lifting a heavy object the prior night; the impression was muscle strain. There is then an August 1980 STR showing that he was hit by a tree while riding on a tank in Germany. (It refers to scapula pain, but not low back pain.) The Board's March 2018 remand directed the RO obtain the Veteran's STRs from his National Guard and Army Reserve service as well as from the hospital in Germany where he was treated in 1975, 1977, or 1978 after the tank in which he was riding hit a tree that hit his head. Upon remand, the RO obtained some of these missing STRs and service personnel records (SPRs). However, the STRs and SPRs are incomplete. Most notably, there are no records from his National Guard service in the 1970s. Upon remand, the RO sent several requests to the service department for STRs, but the Board cannot locate any requests sent by the RO to the state National Guard unit where the Veteran served. The RO did not prepare a formal finding of unavailability or other memorandum to detail its efforts. As such, the Board cannot at present find that all necessary efforts to attempt to obtain these records were made. Apart from this deficiency, the RO correctly noted that the Veteran alleged treatment as an inpatient in Germany after the August 1980 injury. The RO sent him a letter in July 2020 asking him to provide enough details to allow the RO to request those records. The RO made clear that this information was needed to attempt to obtain the records. The Veteran did not respond. Relatedly, the Board's prior remand directed the RO to ask the Veteran to provide or identify and authorize VA to obtain treatment records from the private doctor(s) who conducted his past left hip replacements. The RO complied by sending a letter in May 2018 asking for this information. Again, the Veteran did not respond. It is not clear why the Veteran did not respond as this information would likely aid in substantiating the claims. He may still do so if he wishes. Ultimately, however, VA's duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). The Veteran is free to refuse to report for a scheduled VA examination, but the consequences of that refusal may result in the adjudication of the matter based on the evidence of record. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). An adverse finding of fact may result. See Turk v. Peake, 21 Vet. App. 565, 570-71 (2008). Hence, there was substantial compliance to this end. Remand to attempt to obtain the missing STRs and SPRs is still necessary, however, Remand is also needed for a new VA opinion. The Board's previous remand directed the RO to obtain a VA examination and opinion addressing whether the Veteran's low back condition is related to service. The Board advised the examiner to "[p]lease consider all lay statements of record." Upon remand, a VA examination was conducted in June 2019. The VA examiner concluded that the Veteran's current diagnosis of degenerative arthritis of the spine, spinal stenosis, and lumbar disc disorder with myelopathy were less likely than not related to service. The examiner reasoned that the Veteran has no documentation demonstrating a back injury during service, and no x-rays of the lumbar spine could be found until after discharge in 2009. The examiner found no documentation on separation examination of a back injury. Hence, the examiner concluded that a nexus has not been established. After the STRs documenting injuries during service were received, the RO obtained an opinion from a different VA examiner in December 2019. This examiner also concluded that the Veteran's back condition was less likely than not related the service. The examiner reasoned that, during service, the condition was acute only. The examiner found that the Veteran separated in 1973, which shows a gap of many years in care, and there was no objective evidence found in the treatment record to confirm that the current degenerative arthritis of the spine, spinal stenosis, lumbar disc disorder with myelopathy, or bilateral lower radiculopathy were incurred in or caused by collision with a tree during service. In addition, the examiner found significant that there were no back complaints on the separation examination. The examiner stated that there was is no evidence of chronicity of care. Hence, this examiner also found that a nexus has not been established. Both VA examiners impermissibly relied on an absence of documented evidence during service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). To this end, it is true that the available STRs include multiple medical history reports up to the time of his retirement in 1992. The Veteran denied a history of back pain at each examination. However, the Veteran reported to the June 2019 VA examiner that he had a history of back pain continuously since service. This is not an absence of evidence. The Veteran's statement is competent evidence of his symptoms during and since service. Contrary to the Board's remand, the VA examiner did not consider the Veteran's statement that he did have ongoing symptoms during and since service. The VA examiner did not appear to consider that the reports of medical history during service may have been inaccurate. In short, the VA examiner's failure to consider the Veteran's testimonial statement, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. At present, the Board is not finding that the Veteran's statements are credible where he asserts continuous back pain after service. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). However, an opinion is needed to address whether the Veteran's condition is related to service if assuming as true that his statements are true. See Id. at 340; Miller v. Wilkie, 32 Vet. App. 249, 262 (2020). Relatedly, an opinion is needed to determine if the Veteran's current back condition is the type that might result from the injuries during service even if he did not have symptoms for long periods of that service. To this end, the Board is not indicating that an absence of treatment may never be medically significant. That is a medical determination outside the Board's competence to address. The Board is only intending to mean that the VA examiners did not adequately explain why the absence of evidence was medically significant in light of the Veteran's report of ongoing symptoms since service. 2. Whether new and material evidence has been submitted to reopen a claim for a left hip disorder and, if so, whether service connection should be granted. As the Board explained in its prior remand, this issue is intertwined with the evidentiary development needed on the low back claim. This continues to be the case at present. As such, the issue is intertwined and must be remanded together. To this end, the Board is mindful that a VA provider in July 2017 observed that the Veteran had a history of significant left hip problems. This provider wrote: "[s]uspect with left foot in foxhole the one affected and caused the other issue." The provider opined that the "hip injury with resultant multiple surgeries - affecting gait, as likely as not 50/50 probability due to traumatic fall will at [F]ort [D]rum." The Board finds that this opinion is not adequate to resolve the issue. First, it is an unexplained conclusory opinion, which is not adequate to inform the Board of the reasoning underpinning the positive opinion. Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). Second, further factual development remains necessary to attempt to confirm the occurrence of this event, as indicated by the likelihood that there are missing STRs and SPRs. Finally, it is important to note that, because the threshold issue concerns reopening a prior claim, the Board previously found that 38 C.F.R. § 3.156(c) might apply to his claim if new STRs or SPRs were obtained. At present, the provider's July 2017 statement may constitute new and material evidence under 38 C.F.R. § 3.156(a). A more favorable finding under § 3.156(c) might still be available, however, if further STRs or SPRs are obtained. As such a finding would be more favorable, the Board finds that it is more beneficial to defer the reopening question until the development on the STRs and SPRs is complete. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete SPRs and STRs, to include all documents pertaining to his service in the state of West Virginia National Guard during the 1970s. Verify all active duty for training and inactive duty training dates for alleged service. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. If any records cannot be obtain, prepare a memorandum detailing the records custodian(s) contacted and the response(s) received. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed low back and left hip condition. The examiner is asked to provide a response according to the following: (a.) Is a current low back or left hip condition at least as likely as not related to service, including (i) a low back injury in January 1971; (ii) an injury in August 1980 where a tree fell on his head; or (iii) a fall into a foxhole in 1991 or 1992? For the limited purpose of answering this question, the examiner should assume as true that these events occurred. The examiner is asked to address whether the current condition is the type that might be expected to have resulted from a traumatic injury during service as described instead of a more recent onset, even if asymptomatic during all or some of the intervening years? (b.) Did a low back or left hip condition preexist any period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA)? (c.) If so, was the condition aggravated to any degree by such service, including injuries noted herein above? In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms, such as low back pain, started during service. Assuming these statements are true, the examiner is asked to explain why his statements make it more or less likely that a current condition is related to service. (Continued on the next page) If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or are implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.