Citation Nr: 21007959 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-09 414 DATE: February 11, 2021 REMANDED The issue of entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1958 to June 1958. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing before the undersigned. The record does not contain the Veteran’s service treatment records (STRs), which have been found to be unavailable due to a fire. Where service records are destroyed or missing, VA has a heightened duty to assist a Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). 1. The issue of entitlement to service connection for a back disability is remanded. A remand is warranted to afford the Veteran an examination to determine the nature and etiology of his back disorder. In his testimony presented during the February 2021 Board hearing, the Veteran described his recollections of his pertinent in-service and post-service history in support of his claim. The Veteran described an in-service event in which he tripped and fell in a rut carrying a load of ammunition, hurting his back as he tried to protect the ammunition. The Veteran testified that he did not seek treatment in service, but he had back pain during service and after service for many years. The Veteran testified that he treated the back pain with home remedies such as hot pads and pain pills during a period of approximately 1958 to 1975. The Veteran testified that finally, as his pain became more severe, he went to VA facilities for treatment in 1975, and this led to his back surgery proximately thereafter. As there is an indication that his current disorder could be related to service, an examination is warranted. The Board makes no credibility findings at this time. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal, including (a.) VA treatment records from the Dallas VAMC/Hospital dated from 1974; and (b.) VA treatment records developed since February 2021. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the record is determined to be complete, please refer the claim to an appropriate clinician for an opinion as to the nature and etiology of the Veteran’s back disability. The Veteran’s claims-file must be made available to, and be reviewed by, the clinician. The clinician is requested to opine as to the following: (a.) Please identify, by diagnosis and/or functional impairment, all back disabilities current during the period on appeal (since November 2016). (b.) For each disability identified, is it at least as likely as not (a 50 percent or greater probability) etiologically related to service in 1958, to include back pain following a fall into a rut while carrying a load of ammunition? In responding to question (b) above, the clinician is requested to consider and discuss as necessary: (c.) What types of symptoms would have been caused by the claimed in-service injury? (The Veteran has described an in-service injury in which he tripped and fell in a rut carrying a load of ammunition and hurt his back.) (d.) Is there any medical reason to accept or reject the proposition that, had the claimed in-service event occurred, such an injury could have led to the current disorder? (e.) Please explain whether the Veteran’s lay statements align with how the disorder is known to develop. The clinician must consider and address as appropriate lay evidence including: *The Veteran described an in-service event in which he tripped and fell in a rut carrying a load of ammunition and hurt his back as he tried to protect the ammunition. *The Veteran testified that he did not seek treatment in service, but he had back pain during service and after service for many years; the Veteran testified that he treated the back pain with home remedies such as hot pads and pain pills during a period of approximately 1958 to 1975. *The Veteran testified that finally, as his pain became more severe, he went to VA facilities for treatment in 1975, and this led to his back surgery proximately thereafter. *August 1975 VA treatment records reflecting a medical history that the Veteran “was well until approximately 1 year ago when he began to have low back pain and shortly thereafter radiation into the right leg.” The clinician is advised that the Board has not made any credibility determinations with respect to the Veteran’s statements, including with regard to in-service injury, symptomatology, and worsening back pain since service. The clinician is further advised that the Veteran’s service treatment records are unavailable; therefore, negative inferences due to a lack of in-service treatment records may not be drawn. With respect to any post-service falls or injuries, the clinician is advised that there is no legal requirement that the in-service event or injury must be the sole cause of the disorder claimed in order to support an etiological link to service. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the back disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in-service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.