Citation Nr: 21007023 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-20 742 DATE: February 8, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force on active duty from June 1977 to June 1985. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the above claim in a January 2019 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Memorandum Decision, the Court vacated the Board’s denial of service connection. The Court found the Board did not fulfill its duty to assist by failing to obtain the Veteran’s service treatment records from Landstuhl Army Hospital in Germany. Additionally, the Court reversed the Board’s conclusion that the presumption of soundness was rebutted and remanded this matter for VA to adjudicate the Veteran’s claim for service connection with the presumption of soundness established for the Veteran’s back condition. Although the Board regrets further delay, another remand is necessary to provide the Veteran with every possible consideration in accordance with the Court’s Order. Further development is necessary prior to appellate review to obtain the Veteran’s relevant service treatment records and provide the Veteran with an adequate VA medical opinion. Entitlement to service connection for a back disability is remanded. The Veteran contends that he suffers from a back disability related to an in-service injury during active duty. In July 2018, the Veteran testified before the Board that he was injured in a car accident and received treatment at Landstuhl Army Hospital. The Veteran stated that his treatment records were not found in his claims file. The Veteran reported during his December 2013 VA examination that he had 18 months of physical therapy at Landstuhl. VA has a duty to assist the Veteran in obtaining evidence to substantiate all substantially complete initial and supplemental claims. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA’s duty to assist requires VA to make as many requests as are necessary to obtain relevant records, if available, from a Federal department or agency, to include service medical records. 38 C.F.R. § 3.159(c)(2). Accordingly, remand is required to obtain the Veteran’s medical records associated with the treatment he received at Landstuhl Army Hospital. VA’s duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. VA has a duty to provide the Veteran a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran received a VA examination to address his back disability in December 2013 and a VA addendum medical opinion in May 2015. The Veteran testified in July 2018 to experiencing back pains since his in-service car accident. The Board notes that the May 2015 VA addendum opinion pertained to whether the Veteran’s preexisting back disability was aggravated by service. However, pursuant to the Court’s Order, consideration must be given to the Veteran’s in-service injury and related back condition with the presumption of soundness in place. There shall be no deduction to benefits based on evidence of the Veteran’s preexisting juvenile osteochondrosis, and the Veteran shall be taken to have been in sound condition upon entrance into service in the Air Force. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding service treatment records relevant to the Veteran's back disability from Landstuhl Army Hospital during the Veteran’s service in Germany. The RO must document all attempts to obtain these records that the Veteran has adequately identified. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination with an appropriately qualified clinician to determine the nature and etiology of the Veteran’s current back disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. A copy of this remand should be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) the Veteran’s back disability had its onset in, or is otherwise related to, the Veteran’s active service. For the purpose of this examination, the clinician must consider the Veteran to have been in sound condition at entrance into active service. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.