Citation Nr: 21009462 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-17 809 DATE: February 22, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a lumbar spine disability due to April 1969 pilonidal cyst excision is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1962 to October 1966. This case comes on appeal of September 2014 and December 2015 rating decisions. In light of the ongoing pandemic, the Veteran agreed to testify before the Board in a virtual tele-hearing in January 2021. 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a lumbar spine disability due to April 1969 pilonidal cyst excision is remanded. The Veteran has effectively presented two theories of entitlement for the same disability. Medical records demonstrate current diagnoses of osteoarthritis and degenerative disc disease of the lumbosacral spine. The Veteran contends that this current disability is causally related to a pilonidal cyst incurred in service. The Veteran’s first contention in this regard is that the injury that caused the pilonidal cyst ultimately resulted in his current disability. At his January 2021 Board hearing, the Veteran testified that he believed the in-service pilonidal cyst developed after he fell onboard the ship he served on and damaged his tailbone. The Veteran’s second contention is that his spine disability resulted secondary to April 1969 VA treatment he received to resolve an infection of the site where the pilonidal cyst was removed during service. There are two reasons for remand in this case: first, to ensure that VA has attempted to obtain all VA records under appropriate procedures, and second, to fulfill VA’s duty to assist by providing the Veteran with an examination and adequate medical opinion regarding his claims. Records Regarding records, the Veteran has alleged that VA has not appropriately obtained all records available from Cincinnati VA Medical Center (VMAC) related to his April 1969 surgery and any follow-up. The claims file contains records some VA hospitalization records from 1969, but not all. An August 2014 internal memorandum shows that Cincinnati VAMC responded to a Los Angeles VA Regional Office release of information request, stating that there were not records responsive to the request. According to the memorandum, there were no paper records dated 1969 and the only records were from 1988 to the present. Nevertheless, in July and October 2016, in association with the Veteran’s 38 U.S.C. § 1155 claim, the agency of original jurisdiction sent letters to Cincinnati VAMC requesting the Veteran’s records. There is no response indicated in the record. In May 2017, the AOJ then sent the Veteran a letter informing him that VA had made two attempts to obtain the VAMC records and determined that further attempts would be futile. By law, VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency, to specifically include VA treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Id. If, after continued efforts to obtain Federal records, VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. Such notice must contain: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain he records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and, (iv) A notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). Here, in notifying the Veteran that further attempts to obtain his VA records would be futile, the AOJ only identified the two attempts made in July and October 2016 that were met with no response. Thus, to the extent that the AOJ determined futility based on those two attempts, it did not follow the proper procedures of 38 C.F.R. § 3.159(c)(2). The law does not allow VA to determine that efforts are futile based solely on the non-responsiveness of a fellow branch of its own agency. To the extent that the AOJ made a futility determination based on prior efforts, the Veteran must be clearly notified of those efforts in accordance with 38 C.F.R. § 3.159(e). On Remand, the AOJ must make as many efforts as necessary either to obtain the Veteran’s identified records from Cincinnati VAMC related to his April 1969 surgery, or to obtain an affirmative response that the records do not exist. If the AOJ determines that further efforts to obtain those records would be futile, the AOJ should notify the Veteran of this finding in a way that satisfies the requirements of 38 C.F.R. § 3.159(e). Examination and Medical Opinion VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the AOJ obtained a June 2016 medical opinion regarding the Veteran’s lumbar spine disability. The examiner opined that the Veteran’s lumbar spine condition was less likely than not caused by or related to spinal anesthesia or pilonidal cyst excision. By way of rationale, the examiner only stated that the Veteran’s separation examination showed normal spine and skin and that the Veteran was diagnosed with lumbar spine degenerative disc disease well after active duty. This opinion neither addressed the Veteran’s contentions nor provided a medical explanation for how the identified evidence supported the conclusion. Thus, this opinion is not adequate. Moreover, to the extent that this opinion at all attempted to address the Veteran’s claim under 38 U.S.C. § 1151, there was no mention of the Veteran’s post-service VA treatment. Accordingly, on remand, the Veteran should be afforded a VA examination for his lumbar spine disability. Regarding the Veteran’s claim for direct service connection, the examiner should address whether it is at least as likely as not that the Veteran’s current disability was caused by or incurred in service, to include the tailbone injury that the Veteran believes is related to the development of his pilonidal cyst. In that regard, the Board notes that the Veteran is competent to describe his in-service experiences. Regarding the Veteran’s claim under 38 U.S.C. § 1151, the statute provides compensation in situations in which a claimant suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or the proximate cause of additional disability was an event which was not reasonably foreseeable. To determine whether a Veteran has an additional disability, VA must compare the Veteran’s condition immediately before the beginning of the medical treatment upon which the claim is based to his condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a Veteran’s additional disability, it must be shown that the medical treatment caused the Veteran’s additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. 38 C.F.R. § 3.361(d), (d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Schertz v. Shinseki, 26 Vet. App. 362 (2013); 38 C.F.R. § 3.361(d)(2). Thus, in providing a medical opinion with regard to the Veteran’s claim under 38 C.F.R. § 1151, the examiner should address the questions necessary to evaluate the claim. The matters are REMANDED for the following action: 1. Make as many attempts as necessary to obtain the Veteran’s VA treatment records related to his April 1969 surgery at Cincinnati VAMC and any follow-up treatment. If the VAMC determines that such records are not available, a record of the VAMC’s response should be documented in the claims file. For any records where the AOJ determines that further attempts to obtain them would be futile, the AOJ should notify the Veteran of this fact in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA back examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the low back. a) Regarding the Veteran’s direct service connection claim, with respect to each diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the Veteran’s claims that, prior to the development of his pilonidal cyst, he fell on the deck of his ship and injured his tailbone. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. b) Regarding the Veteran’s claim under 38 C.F.R. § 1151, the examiner should address the following: i) Is it at least as likely as not (i.e., is there a 50 percent or greater probability) that the Veteran incurred additional disability to the lumbar spine as the result of the April 1969 surgery, to include the performance of a spinal tap? ii) If additional disability was the result of the April 1969 surgery, was the proximate cause of such disability (i) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or (ii) an event not reasonably foreseeable? The examiner should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.