Citation Nr: 21068856 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-32 372 DATE: November 15, 2021 REMANDED Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to August 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in November 2018. A transcript of the hearing is of record. This matter was previously before the Board in April 2019 when it was remanded for further development. Entitlement to service connection for a back condition is remanded. Although the additional delay is regrettable, the Board finds another remand is required before a decision can be made on the Veteran's claim. In accordance with the April 2019 Board remand, an addendum opinion addressing the etiology of the Veteran's back condition was obtained. In the December 2019 opinion, a VA examiner opined that the Veteran's back condition was not related to his active service. In support of the opinion, the examiner noted that private medical records for the last 10 years do not show chronic low back complaints. The examiner also noted that, although the Veteran reported ongoing low back pain, there was no major trauma in service which would have caused his current problems. In addition, the examiner noted that medical records do not support ongoing problems after service. Finally, the examiner indicated that the statement provided by the Veteran's daughter was non-probative as it is unlikely his daughter would have the memory of her father's back health during the first few years after his separation from service. However, the Board finds the opinion inadequate as the examiner failed to adequately consider pertinent evidence of record. Specifically, in an August 1977 statement in the Veteran's military personnel records, the Veteran reported undergoing a separation examination and indicated that, since the separation examination, there had been a change in his medical condition as he was experiencing back pain. In addition, private medical records document complaints of low back pain in 1992, 2000, 2006, and 2013 (which also contradicts the examiner's statement that there was no record of ongoing problems after service). Lastly, on his VA Form 9, the Veteran indicated that he treated his condition with over-the-counter medications because he did not have insurance when he first separated from service, which could likely explain the gap in treatment. As this evidence was not clearly addressed in the December 2019 medical opinion, the Board finds remand for a new opinion is required. The Board also notes that the April 2019 Board remand directed the Agency of Original Jurisdiction (AOJ) to ask the Veteran to complete VA Form 21-4142 for any private treatment he has received for his low back condition, including any records of emergency room treatment, as the Veteran reported at the Board hearing that he had gone to the emergency room a couple of times for treatment of his back condition. In an October 2019 development letter, the AOJ asked the Veteran to complete and return VA Form 21-4142 but did not specifically state the form would authorize VA to obtain records of emergency treatment. Thus, in November 2019, the Veteran submitted a statement in which he reported that he only received VA treatment. As it is likely the Veteran was unaware the AOJ intended to obtain the records of emergency treatment he referenced during the Board hearing, on remand, the AOJ should make another attempt to obtain the records. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the period from October 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 to authorize VA to obtain any records of emergency room treatment. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. After obtaining any additional records, obtain an addendum opinion from a VA examiner other than the December 2019 examiner addressing the etiology of the Veteran's back condition. The electronic claims file, including this remand, should be made available to the examiner for review in connection with this request. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinion. Following a review of the Veteran's claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) the Veteran's back condition was incurred in or is otherwise related to the Veteran's active service, to include his in-service treatment for back pain. In providing the requested opinion, the examiner is asked to consider the following: (i) the Veteran's August 1977 statement noted in his military personnel records that his medical condition changed after his separation examination as he was experiencing back pain; (ii) private medical records documenting ongoing complaints of back pain beginning in 1992; and (iii) a statement on the Veteran's VA Form 9 that he did not have insurance when he first separated from service so he self-treated his back condition. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.