Citation Nr: 21007354 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-38 475 DATE: February 9, 2021 REMANDED Entitlement to service connection for the residuals of a lower back disorder post fusion (hereinafter “back disorder”) is remanded. Entitlement to service connection for a neck disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to November 1977. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied the Veteran’s claims of service connection for a back disorder and a neck disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the parties filed a joint motion for remand (JMR) which vacated and remanded both issues back to the Board for adjudication consistent with the remand instructions. In the April 2020 JMR, the parties agreed that the Board erred in denying the claims as the duty to assist was not satisfied because VA did not procure an adequate examination and did not ensure adequate attempts to obtain all the Veteran’s medical records relevant to his claims. As such, in a September 2020 Board remand, the Board remanded the issues for further development pursuant to the JMR. The directives included requesting signed release forms to obtain the Veteran’s private chiropractor medical records, for the RO to request his medical records from Madigan Army Hospital and all of his VA medical records from 1988 to present, and to then obtain a VA examination. However, the Board finds that the 2020 directives were not substantially complied with, so the Board must again remand the matters. Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the June 2017 VA medical opinion was deemed inadequate in the JMR, and the parties agreed this opinion to be inadequate because the examiner failed to address the notation of painful joints and pulled muscles in the November 1977 separation examination, as well as the Veteran’s lay statements that he has received continuous treatment since service. Therefore, an adequate medical opinion regarding the etiology of the Veteran’s back and neck conditions was requested. Unfortunately, the resulting November 2020 opinion failed to include a sufficiently detailed or adequate rationale. Instead, the VA examiner repeated the 2017 opinion, that there were no complaints or treatment in the STRs and there was a 24 year gap between discharge and post-service treatment for the back and neck, and only added that there were no documents to support chiropractic treatment post-service and there were no surgical treatments until 2006 and 2013. However, the examiner failed to consider the December 2007 private doctor’s statement who reviewed the Veteran’s entire medical history and stated the 1976 MVA resulted in him having low back pain, and that he has had chiropractic care for the past 25 years – which was expressly requested to be discussed in the JMR. Further, the examiner failed to expressly opine, with a clear rationale, whether the Veteran’s motor vehicle accident where he was a passenger in a truck which hit a tree at 70 M.P.H. and subsequently spent 5 days in the hospital, and he has since stated that he injured his neck and back in that accident, are etiologically related to his current back disorder and neck condition; the fact the Veteran’s conditions were normal at discharge does not preclude service connection being granted for post-service conditions if they are, in fact, related to service. As such, the Board finds that the 2020 opinion remains insufficient upon which to decide the claims and is tainted by the same flaws which rendered the 2017 VA opinion inadequate. In addition, the Board notes that a request for the Veteran’s medical records from service from the Army hospital was not completed. Remand is necessary for the Board to ensure that adequate attempts are made to obtain the Veteran’s medical records from Madigan Army Hospital or explain why such records do not exist or that further attempts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(2). As for the VA records, the RO printed what was in the computerized medical records, but it is clear records are missing. The progress notes start in 1999, which would be consistent with when VA switched to electronic medical records. However, there are x-ray reports dating back to 1988, which is when the Veteran states he began VA treatment. It is likely the progress notes from 1988 to 1999 were in paper form, and they must be retrieved. As for the private records, the Board notes that the RO sent the Veteran two letters with VA Form 21-4142 in September 2020 and October 2020 for his private records, but he did not respond. Since it is necessary to remand the case again for the potentially outstanding service medical records and a new opinion, the Board will give him another opportunity to complete the release forms. However, the Board reminds the Veteran that “[t]he duty to assist is not always a one-way street” and if the Veteran desires help with his claims, he must cooperate with VA’s efforts to assist him. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, while the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law. As such, the matters are again remanded to obtain an adequate opinion and to ensure compliance with the Board’s previous remand directives. The matters are REMANDED for the following action: 1. Obtain the medical records from the emergency room/treatment at the military hospital, Madigan Medical Center, from July 17 through July 22, 1976. 2. Obtain the Veteran’s VA medical records from 1988 to 1999 from Columbia VAMC. Searches must be made of archived or retired paper records, and a negative response must be documented for the file if no records are found. 3. Ask the Veteran to identify private treatment records not already of record, including from Dr. James Kinnard and any other private chiropractor in who treated the Veteran. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and he should be notified so that he can attempt to obtain those records. 4. DO NOT PROCEED until the above has been obtained to the extent possible. 5. Forward the electronic claims file and a copy of this REMAND to the 2020 VA examiner to obtain an addendum opinion regarding the Veteran’s low back disorder and neck condition. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to whether: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current back disorder is related to an in-service injury, event, or disease, to include the documented in-service motor vehicle accident? (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current neck condition is related to an in-service injury, event, or disease, to include the documented in-service motor vehicle accident? The examiner is asked to consider the following and explicitly discuss the STRs: • The July 1976 note that he was hospitalized for 5 days following the MVA, and he was noted to have burns on his face, back of the neck, and across his shoulders; • The August 1977 X-ray findings that revealed “several compression deformities within the dorsal spine”; • The November 1977 separation from service report of medical history where he noted “yes” to swollen and painful joints but “no” to recurrent back pain; • The November 1977 separation evaluation marked normal spine, but also noted the 1976 MVA and that he had pulled muscles and painful joints; • The December 1999 VA X-ray noted minimal degenerative changes in the thoracic spine; • March 2003 Cervical Spine X-Ray revealed a slight asymmetry of neurovascular foramina bilaterally at C3-4; • In April 2003, he reported low back pain for the last six weeks that was radiating into his legs. It was noted that he had scoliosis of the lumbar spine with small to moderate-sized osteophyte; • April 2003 MRI revealed degenerative disc disease at L3-4 and L4-5 with associated disc bulges; • In November 2003 he was referred for his back pain. He stated that driving a lot for his job in sales irritated his back. He reported going to occupational therapy for his back, as well as having gone to a chiropractor 20 times with no relief; • In a January 2004 private back examination, the examiner diagnosed that Veteran with degenerated disc of the lumbar spine at L3-L5. The examiner prescribed steroid injections; • In January 2004 he noted back pain since September 2002 and that he has had OT/PT/medications to help. It was also noted that he had multiple visits and manipulations by his chiropractor; • In March 2007 he complained of neck pain radiating to the left ear and X-ray findings revealed decrease in the height of the vertebral bodies. • The August 2007 MRI of the back showed degenerative disc disease; • The August 2007 MRI of the neck revealed generalized disc bulge with slight bilateral foraminal stenosis and moderate to marked right foraminal stenosis due to degeneration of the uncovertebral joint, and degenerative disc disease; • The November 2007 private medical record noted he was seen for back pain that he reported had been chronic and gotten worse; • The December 2007 private medical record noted that the Veteran was referred with a complaint of constant, mostly sharp, electrifying pain in his low back. A review of the Veteran’s entire medical history was included, noting the 1976 MVA where the Veteran was a passenger of a truck that hit a tree at 70 m.p.h. and that “this resulted in him having low back pain and evidently partial paralysis for several days.” The doctor further noted that “for the past 25 years, he has continued to have low back pain, and has had chiropractic manipulative treatments in the past for his low back pain.” The doctor also noted the Veteran’s history of the 2003 incident when his back went out; • May 2014, it was noted during his examination for his scars that the Veteran had been in a MVA and the vehicle burst into flames and he sustained multiple second degree burns and was temporarily paralyzed from the waist down due to spine trauma at Madigan. He was discharged on crutches and instructed to treat the burns with Silvadene; • The Veteran’s July 2017 statement with the Form-9, where he stated the 2002 report of initial disability to his back was not that first time he had back pain. He stated this was the first time his back “went out” and that treatments were no longer working after this incident; and • The November 2020 examination report, where the Veteran stated that he has continued to experience pain to lumbar area since the in-service MVA and that at separation in 1977 he did not report low back complaints, but that while he was in hospital he was paralyzed from the waist down and eventually recovered. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.