Citation Nr: 21076397 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-38 965A DATE: December 23, 2021 REMANDED Entitlement to service connection for a back disability, to include right paraspinal thoracic strain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1985 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, the Board notes that the April 2012 rating decision denied service connection for back condition. In May 2012, the Veteran indicated that he was not provided a VA examination due to accomodation regulations at his prison facility. After an October 2012 VA examination was provided, an October 2012 rating decision again denied service connection for right paraspinal thoracic strain (claimed as back condition). As new evidence was submitted within a year of the April 2012 rating decision, this evidence tolled the rating decision from becoming final. See 38 C.F.R. § 3.156(b) (providing that if new and material evidence is received within one year after the date of mailing of an RO decision, it will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period"); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). In his February 2016 VA Form 9, the Veteran requested a Board hearing. However, correspondence in the claims file indicates that the scheduled July 2021 Board hearing was cancelled for reasons unknown. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (e). The Board also notes that efforts to obtain the Veteran's current mailing address have been unsuccessful. However, upon remand, the RO should take any necessary measurements to continue finding the Veteran's current contact information and/or address. Additionally, the Veteran was notified in March 2016 that his February 2016 VA Form 21-22 was invalid because the form did not contain a valid signature from the noted VSO, AMVETS. An updated valid VA 21-22 was not submitted thereafter. As such, the Veteran proceeds unrepresented. 1. Entitlement to service connection for a back disability is remanded. The Veteran contends that his back disability is related to service. Service treatment records (STRs) in November 1985 demonstrate complaints and treatment for low back strain for the past two days as a result of a back injury and moderate paraspinal spasm. A February 1986 STR demonstrates that the back issue had resolved. STRs also reflect complaints for chest wall pain. The December 1986 separation examination demonstrates that the Veteran denied any recurrent back pain. Department of Corrections (DOC) records in 1995 evidence complaints for recurrent back pain and the Veteran's complaints that his back has been giving out "whenever it wants" since 1986. An October 2012 VA examination report demonstrated a diagnosis for acute lumbar strain, which had resolved, and chronic right paraspinal thoracic strain. The examiner noted STRs in November 1985 reflecting an assessment for low back pain and spasms of the lumbar spine and in February 1986 demonstrating resolve, with no evidence of ongoing chronic lumbar pain during the rest of active service, and the Veteran's denial of recurrent back pain upon separation. The examiner also noted that there was no evidence of thoracic spine pain or paraspinal muscle of the thoracic spine during service but that x-rays in 1993 revealed minor scoliosis with degenerative changes following a motor vehicle accident. During prison, the Veteran was treated in September 2001 for severe right upper back pain after carrying 30 pounds while working in the kitchen; he was diagnosed with acute right upper mid-back pain and advised to rest. During examination, the Veteran reported thoracic spine pain, mainly involving the right paraspinal muscles occurring every three to four months; he denied any lumbar spine pain. The examiner indicated that the Veteran reported his last flare up occurred four to five months ago with increased tightness of the thoracic spine upon repetitive movements but that severe flare ups occur and resolve spontaneously with no specific treatment. The examiner provided a negative nexus opinion and concluded that it is less likely than not the current chronic thoracic spine condition is related to complaints of back pain in service and likely due to the natural progression of the disease. The examiner reasoned that the Veteran was seen for acute lumbar strain in service which resolved without any evidence of chronic lumbar condition and that the current examination revealed a normal lumbar spine; while the Veteran's subjective complaints correlate with objective findings of chronic mild right paraspinal thoracic strain that began after service, his single episode of back pain in service only involved the lumbar spine with no evidence of thoracic spine involvement. In a January 2015 statement, the Veteran denied the accuracy of the October 2012 VA examination. He asserted that the examiner made inaccurate statements about his low back condition in November 1985 and failed to accurately document his symptoms to include inability to walk, move his upper body, and difficulty breathing. He indicated that upon physical examination, he winced and pulled away, whereafter the doctor replied, "Now I know you're faking." Furthermore, the Veteran claimed that the examination was inaccurate because it was not performed during a debilitating flare up. The Veteran also indicated that the examiner failed to discuss a January 1989 record demonstrating further aggravation of his back condition following removal of cardboard from a dumpster. The Veteran asserted that he never told the examiner that his flare ups resolved spontaneously and that his current symptoms are consistent with his current diagnosis and symptoms reported during service, particularly shortness of breath, and not that of low back strain. In addition, the Veteran insisted that there are missing emergency room logs, sign-ins, prescription information, and barracks records. During his June 2015 DRO hearing, the Veteran reaffirmed all of his contentions as found in the January 2015 correspondence, to include inadequacy of the October 2012 VA examination and its duration, symptoms experienced in service, i.e. shortness of breath and immobility, are consistent with his current diagnosis, there being only one documented incidence of a back injury in service, and that he denied recurrent back pain upon separation because he was not experiencing a flare up at such time but did indeed continue to experience back pain shortly following separation. The Board finds the October 2012 VA examination is inadequate. First, the examiner concluded that there was no evidence during service of a back condition involving the thoracic spine; however, the examiner failed to consider the November 1985 STR demonstrating moderate paraspinal spasm and ongoing back complaints in 1995 DOC records in which the Veteran reported onset of his back giving out since 1986. Additionally, the examiner failed to consider the Veteran's lay statements regarding consistent symptoms with his current diagnosis and that reported during service, i.e., shortness of breath. As such, an addendum opinion is warranted to determine the nature and etiology of the claimed back condition. Additionally, the Veteran asserted that there may be missing relevant records from service including emergency room logs, sign-ins, prescription information, and barracks records. On remand, the RO must attempt to make efforts to obtain these records, if possible. The matter is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain any outstanding VA and/or private records during periods of active duty from August 1985 to December 1986, to include emergency room logs, sign-ins, prescription information, and barracks records. Efforts to obtain these records should be documented in the claims file. 2. After the above development, obtain an addendum opinion from a qualified clinician to determine the nature and etiology of the Veteran's back disability. The claims folder and a copy of this remand in its entirety must be provided to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements; the examiner must indicate on the report that such review was undertaken. The examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability, to specifically include right paraspinal thoracic strain, is related to active service? The examiner must consider STRs demonstrating an assessment for moderate paraspinal muscle spasm and shortness of breath, and address whether these symptoms are correlated to the currently diagnosed right paraspinal thoracic strain. The examiner is also asked to consider the Veteran's lay statements regarding his denial of recurrent back pain due to the lack of a flare up at such time, in addition to, DOC records documenting the Veteran's reports for continuity of back pain since 1986. The examiner must provide a rationale in support of all opinions provided. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 3. Then, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.