Citation Nr: 21069271 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-13 274 DATE: November 18, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from January 1972 to January 1974, and with the United States Army from January 1987 to June 1987, December 1990 to July 1991, and August 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2015. This case was previously before the Board in June 2016, July 2017, and May 2019, when it was remanded for development. The case has been returned to the Board for further appellate review. Entitlement to service connection for a back disability is remanded. In the two prior remands, the Board directed the RO to attempt to obtain the Veteran's service treatment records from his initial period of active duty service with the Marine Corps, using information from a September 2015 DPRIS response. Although the RO submitted further requests to the NPRC, as described in the DPRIS response, it is unclear if the registry numbers referenced in the DPRIS response were used in the requests. Further, it is unclear in the record whether the service treatment records are deemed unavailable, as the communications from NPRC indicate all available records were uploaded, but the most recent additions to the record include only service personnel records. Finally, the Board notes a January 1983 request for service treatment records from this first period of service, which notes reports from the Veteran that he sought treatment for his back in May 1972, September 1972, and June 1973. The September 1972 and June 1973 treatment is noted to have occurred at Camp Hansen in Okinawa; on remand, the RO should attempt to determine if the service treatment records from this overseas treatment were stored separately. As these are federal records, attempts to obtain the records should continue until they are obtained or deemed unavailable. Next, the only medical opinion in the record regarding the etiology of the claimed back condition is inadequate. The examiner only stated that, because there was no record of treatment for any back disability in the medical records, a positive service connection opinion could not be rendered. However, the Veteran's service treatment records indicate treatment for low back pain, including reports of low back pain since 1972. Regardless, the examiner is not permitted to dismiss a veteran's reports of continuous back pain solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Therefore, a remand is necessary to obtain an opinion that properly assesses the records and the Veteran's reports of back pain since 1972. The matter is REMANDED for the following action: 1. Conduct the appropriate development to identify and obtain any pertinent, outstanding hospital or other treatment records from the Veteran's reported back pain treatment at Camp Hansen in Okinawa, Japan, in 1972 and 1973. All efforts to obtain any outstanding hospital treatment records should be documented in the claims file. If efforts in this regard are unsuccessful, the Veteran should be informed of that fact and afforded the opportunity to submit any additional records in his possession. 2. Ensure that all appropriate development, as directed by the September 2015 DPRIS response, has been undertaken to obtain the Veteran's service treatment records. If the Veteran's service treatment records from his first period of service with the Marine Corps are deemed unavailable, document this finding clearly in the claims file. 3. Then, forward the claims file to an appropriate clinician to determine whether the current back disability is related to the Veteran's military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the back disability began in or is otherwise caused by the Veteran's active service. The examiner should be informed that no back disability was noted on the Veteran's November 1971 enlistment examination upon his initial entrance to service, and the Veteran is presumed sound at entrance into the military as to his back. Therefore, the examiner must disregard any evidence suggesting the Veteran had any preexisting back disability prior to military service. In providing the requested opinions, the examiner should specifically address the Veteran's lay statements regarding ongoing back pain since his first period of active duty service. Particularly as the service treatment records from 1972 to 1974 may be unavailable in this case, the examiner may not dismiss the Veteran's reports of symptoms capable of lay observation solely on the basis that such complaints were not corroborated by contemporaneous treatment records. If the examiner rejects the Veteran's reports of symptoms, he or she must provide a reason for doing so, and that reason must go beyond simply noting that the complaints are not documented in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.