Citation Nr: 21012608 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-27 350 DATE: March 4, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army Reserves from May 1981 to April 1999, including on active duty from September 1990 to May 1991 in Saudi Arabia and from August 1997 to April 1998 in a designated imminent danger pay area in Hungary. The Veteran died in October 2017. The appellant filed this case as the surviving spouse. In November 2017, the appellant was deemed to be a valid substitute claimant for the purposes of processing the Veteran’s appeal to completion. In August 2016 and February 2018, the Board remanded the issue of service connection for a back disability for additional evidentiary development. The case has been returned to the Board for appellate review. Entitlement to service connection for a back disability In February 2010, the Veteran requested service connection for a back condition. In a February 2010 VA Form 21-4138, he asserted compensation based on his active duty service overseas during wartime. Pursuant to prior Board remands, the Veteran underwent a VA examination for back conditions in September 2016 (in which the VA examiner rendered a diagnosis of lumbar spine degenerative joint disease (DJD) and noted clinical findings of arthritis). In a September 2016 VA medical opinion, the VA examiner explained why he was unable to determine that the Veteran’s lumbar spine condition occurred or was incurred by active duty. Most recently, in a June 2020 VA medical opinion, another VA physician reviewed the claims file and concluded the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness; however, the rationale provided failed to take into consideration the Veteran’s reported lower back pain on January 25, 1997 and his military occupational specialties (MOS) duties overseas while on active duty service. Review of the Veteran’s service personnel records document his service on active duty for training (ACDUTRA) on January 25, 1997, his active duty service overseas from September 1990 to May 1991 in Saudi Arabia and from August 1997 to April 1998 in a designated imminent danger pay area in Hungary, as well as his MOS duties as material storage and handling specialist and automated logistical specialist while overseas on active duty. In light of such evidence and the June 2020 VA medical opinion based on an inaccurate factual history, the Board finds that an additional VA medical opinion is needed to properly adjudicate the claim on appeal. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Provide the claims file to an appropriate clinician to provide an opinion regarding the Veteran’s back disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: Review of service personnel records document the Veteran was on ACDUTRA on January 25, 1997 (complaint of lower back pain and diagnostic testing results of the lumbar spine) The Veteran asserted his request for compensation based on his active duty service overseas during wartime in the February 2010 VA Form 21-4138 The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability (diagnosed as arthritis even if resolved at any time prior to his death in October 2017) (i) began during a period of active service, (ii) is related to an incident of service, to include complaint of lower back pain on January 25, 1997 and/or his MOS duties as material storage and handling specialist and automated logistical specialist while overseas, or (iii) began within one year after separation from service. Note – the Veteran served in the United States Army Reserves from May 1981 to April 1999, including on active duty from September 1990 to May 1991 in Saudi Arabia, ACDUTRA on January 25, 1997, and active duty from August 1997 to April 1998 in Hungary. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the Agency of Original Jurisdiction (AOJ) must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the appellant, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.