Citation Nr: 21010994 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-37 898 DATE: February 26, 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 January 1978 to June 1999. In August 2020, the Board remanded this appeal for additional development. For the reasons identified below, the Board finds that remand is again needed. Entitlement to service connection for a back disability. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, the Board finds that there may be outstanding treatment records to be obtained and associated with the claim file. In correspondence received from the Veteran in January 2021, he references an “OFFICIAL medical record” that “is forwarded to the Bureau of Medicine and Surgery (BUMED) and Bureau of Naval Personnel (BUPERS).” (Emphasis in original). The Board has reviewed the file and notes that there are service treatment records associated with the claim file. However, if the Veteran’s communication suggests that there are outstanding treatment records, the Board asks that these be identified and obtained upon remand. In addition, the Board finds that a new VA opinion is needed to clarify the etiology of the Veteran’s disability. The Veteran’s service treatment records note an injury in June 1999, where the Veteran “[r]eceived shove/push in lower back while attempting to rebound a basketball.” The Veteran has since described this injury and his subsequent experience. For example, in correspondence received in October 2012, the Veteran notes the June 1999 injury, and states: “For the past 13 years, I have lived with varying degrees of back pain because, short of surgery, I believed nothing could be done. My back always feels ‘tight’, Sitting too long, standing too long, laying in bed for extended periods and sudden movements often causes increased discomfort.” Correspondence, October 2012. The Veteran also explained that he was cautioned against back surgery by his Department Head “because, in his opinion, there was/is no guarantee surgery would eliminate or reduce any pain.” Id. The Board acknowledges the opinions obtained following the August 2020 remand; however, a new opinion is needed. For example, the November 2020 addendum opinion states that the “Veteran’s STR shows he was evaluated at the ‘Weekend Clinic’ 1999 Jun 05 for a back injury due to being hit while playing basketball on Jun 03, 1999 which was three months post separation.” However, the Veteran’s DD 214 shows that he was on active duty through the end of June. In addition, the November 2020 addendum opinion references Board findings as evidence in support of its rationale. This is problematic for a number of reasons. First, this appeal is in remand status, and the Board has not yet made a final determination regarding the merits of the Veteran’s claim. Second, in requesting a medical opinion, the Board is seeking the scientific expertise of a medical examiner in order to adequately evaluate the Veteran’s claim. The Board itself does not generate medical evidence and should not be cited as a scientific authority. Finally, the specific references contained in the addendum opinion are problematic. For example, the addendum opinion states the following: BVA dated 2020 Aug 14 noted “The Veteran sustained a work-related injury 2012 April which aggravated his lumbar area. It can be concluded due to a lack of continuity of care over a decade the lumbar condition was not the result of the 1999 injury as noted per the lay statement. The Board of Veteran’s Appeals also concluded there is a lack of substantial clinical documentation to ascertain if the Veteran’s current back conditions was caused by or related to the 1999 injury. The use of the single quotation mark appears in the original document and makes it difficult to know which statements the examiner is attributing to the Board. Nevertheless, the Board notes that the August 2020 remand did not address the Veteran’s work-related injury, nor did it make any final conclusions regarding “a lack of substantial clinical documentation.” Accordingly, remand is needed in order to obtain an opinion that does not rely on supposed Board findings as evidence in its rationale. Finally, the Board asks that a new VA opinion address the Veteran’s October 2012 letter that suggests that the reason he did not seek treatment is because, “short of surgery,” he did not believe more could be done for his claimed disability. The new opinion should also address the Veteran’s documented work injury in April 2012. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any service treatment records, VA and/or private treatment records, pertaining to the issue on appeal. All should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain a new VA opinion from a new examiner to address the etiology of the Veteran’s claimed back disability. If necessary, schedule the Veteran for a new VA examination. For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service, including the Veteran’s June 1999 in-service back injury. The VA examiner should also address whether the Veteran’s back disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The VA examiner must address the Veteran’s in-service back injury, the Veteran’s reports of having back pain since service, and the Veteran’s post-service treatment records, including the April 2012, April 2013, and February 2018 records related to the Veteran’s back disability. In addition, the examiner should address: (1) the Veteran’s service treatment records that note an injury in June 1999, where the Veteran “Received shove/push in lower back while attempting to rebound a basketball.”; (2) the Veteran’s lay statements, including those in the October 2012 correspondence, where the Veteran notes the June 1999 injury, and states: “For the past 13 years, I have lived with varying degrees of back pain because, short of surgery, I believed nothing could be done. My back always feels ‘tight’, Sitting too long, standing too long, laying in bed for extended periods and sudden movements often causes increased discomfort.” The examiner should also consider the Veteran’s explanation in the October 2012 correspondence that he was cautioned against back surgery by his Department Head “because, in his opinion, there was/is no guarantee surgery would eliminate or reduce any pain.” Correspondence, October 2012; (3) the Veteran’s documented work injury in April 2012. Finally, the examiner should clarify the November 2020 addendum opinion that states that the “Veteran’s STR shows he was evaluated at the ‘Weekend Clinic’ 1999 Jun 05 for a back injury due to being hit while playing basketball on Jun 03, 1999 which was three months post separation.” However, the Veteran’s DD 214 shows that he was on active duty through the end of June. The Board seeks clarification of this upon remand. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided.   3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.