Citation Nr: A21018487 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 200730-100201 DATE: November 18, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from August 1982 to August 1985. He also served for many years in the United States Air Force Reserve, with periods of active duty for training (ADT) and inactive duty for training (IDT). In October 2019, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his previously denied claim for service connection for degenerative disc disease of the lumbar spine. The claim had originally been denied in an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). That original claim was timely appealed, a statement of the case was issued, and the appeal was perfected. While the claim was awaiting adjudication by the Board, the appellant submitted a request to have his claim considered under the Rapid Appeals Modernization Program (RAMP) under the higher-level review option. A higher-level review decision was issued in October 2018; however, this decision was not properly appealed, with the appellant submitting a legacy notice of disagreement instead of a VA Form 10182, Decision Review Request: Board Appeal. The appellant was notified that his December 2018 appeal of that October 2018 higher-level review decision was defective in a March 2019 correspondence from VA. Within a year after the October 2018 higher-level review decision was issued though, the appellant did not correct the deficiency with his appeal by submitting the appeal on the appropriate form. Within a year of the October 2018 higher-level review decision, the appellant filed a Supplemental Claim in October 2019. In February 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim on the merits based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during the applicable evidentiary window. Additionally, the Board will only consider the claim on the merits, as the determination that new and relevant evidence had been submitted is a favorable finding and the evidence does not clearly and unmistakably establish otherwise. In the July 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the appellant or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The appellant appeared before the undersigned Veterans Law Judge for a hearing in March 2021. A transcript of that hearing has been added to the record on appeal and has been considered in the adjudication of this claim. 1. Entitlement to service connection for a lumbar spine disability is remanded. The appellant contends that his current lumbar spine disability is at least as likely as not related to an in-service low back injury that occurred in June 1983. Alternatively, he has asserted that his current lumbar spine disability is at least as likely as not related to an injury to his low back that occurred during a period of ADT or IDT in June 1998. He has also asserted that either of these injuries may have accelerated the progression of his degenerative arthritis of the lumbar spine. Finally, he has contended that many years of heavy lifting while in active service, and while performing periods of ADT and IDT with the Air Force Reserve have, cumulatively, caused his current lumbar spine disability. While the Board regrets further delay in deciding this claim, after a review of the evidence of record, the Board finds that remand is necessary prior to adjudication of this issue to correct duty to assist errors that occurred prior to the promulgation of the decision currently on appeal. 38 C.F.R. § 20.802(a). Prior to the issuance of the February 2020 rating decision on appeal, the appellant identified that he had served in the United States Air Force on periods of ADT and IDT. The dates the appellant served on periods of ADT and IDT are not of record. Additionally, no efforts appear to have been made to obtain any line of duty determinations related to his June 1998 lumbar spine injury. As these records may contain information regarding the appellant's dates of service, report of in-service injury, and any line of duty determinations made related to this claim, a remand is required to obtain these federal records. 38 C.F.R. § 20.802(a). Additionally, prior to the issuance of the February 2020 rating decision on appeal, the Board notes that the appellant submitted a private medical opinion which suggested his current low back disability may be at least as likely as not due to his years of heavy lifting while serving in the United States Armed Forces. While the private clinician's opinion was inadequate for purposes of deciding this claim because it is speculative, only finding there "may" be a causal relationship, the Board finds that it does at least adequately raise a contention regarding the etiology of claimed disability which was not previously discussed in the previous June 2016 VA medical opinion, which focused exclusively on whether the disability was directly due to the June 1983 low back injury. As such, the Board finds that an addendum opinion at least should have been ordered to address this new private medical opinion prior to the issuance of the February 2020 rating decision. As this development was not completed prior to the promulgation of the February 2020 rating decision, the Board finds that the duty to assist in providing an adequate VA examination and medical opinion was not met and that remand is necessary to correct this error. 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Obtain the appellant's complete service personnel records, to include all documents pertaining to his active service in the United States Army and his service during periods of active duty for training and inactive duty for training in the United States Air Force Reserve. Verify all active duty for training and inactive duty training dates for alleged service in the United States Air Force Reserves. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS) to confirm the days the appellant was paid for active duty, active duty for training, and inactive duty for training during all the years he served in the United States Armed Forces, both in active service and as a reservist. Document all requests for information as well as all responses in the claims file. 2. After the above development is completed, schedule the appellant for a VA examination for his lumbar spine disability. The examiner must review the claims file. The examiner should be reminded that service connection may be granted for injuries incurred or diseases contracted during a period a claimant was on active duty for training and for injuries incurred or the residuals of myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during a period of inactive duty for training, to include any travel to or from these. The examiner is asked to provide a response to the following: Is the current lumbar spine disability at least as likely as not related to active service, including the in-service injury to the low back documented and treated in June 1983? In providing an answer to this question, the examiner must discuss the appellant's more recent statements that he has had a least some pain in his back since this injury which he has self-treated over the years with over-the-counter medications and alcohol. The Board has made no credibility determination pending the examiner's opinion. Is the current lumbar spine disability at least as likely as not related to the in-service injury to the low back documented in June 1998? The examiner's rationale must address the appellant's statement in June 1998 that he had been dealing with a history of back pain prior to the acute injury. Is the current lumbar spine disability at least as likely as not related to an accumulation of long-term wear and tear from heavy lifting in the United States Army and Air Force Reserve, consistent with the appellant's duties handling and loading heavy cargo? The examiner should address the appellant's contentions and the February 2020 private medical opinion which raise this contention regarding long-term wear and tear related to heavy lifting causing or accelerating the appellant's degenerative disease. Is it at least as likely as not that the current degenerative arthritis in the lumbar spine (1) began during active duty, (2) manifested within a year after discharge from active duty, or (3) was noted during active duty with continuity of the same symptomatology since service? The examiner must address the appellant's reports regarding continuing pain in the lumbar spine since his initial injury in June 1983. Again, the Board has made no credibility determination at this juncture. The examiner must provide a rationale to support the above requested opinions. In providing the requested opinion, consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.