Citation Nr: 21014216 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-12 786 DATE: March 11, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the United States Army from September 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans’ Affairs (VA) Regional Office. Procedural History In December 2014 and again in May 2016, the Board remanded the Veteran’s claim to afford the Veteran a new VA examination and to obtain a new VA medical opinion. A September 2016 VA examination report details the Veteran’s examination. The VA examiner submitted a negative etiology opinion. In February 2017, the Board found the September 2016 VA medical opinion inadequate and again remanded the claim for a new VA examination and opinion. The Veteran was examined in March 2017 and a VA medical opinion issued. In January 2018, the Board requested a medical opinion from a specialist with the Veteran’s Health Administration (VHA), and the VHA opinion was received in July 2018. In February 2019, the Board denied the Veteran’s claim based, in part, on the July 2018 VHA opinion. See Board Decision dated February 12, 2019. The Veteran appealed the Board’s February 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court reversed and remanded the Board’s February 2019 decision, finding that the July 2018 VHA opinion is inadequate, and directing that the Board address evidence relevant to the Court’s decision, consider evidence of record of post-service chiropractic treatment that is potentially favorable, and obtain further medical evidence to support its analysis, if necessary. See Court Memorandum Decision dated July 21, 2020 at pg. 6. Pursuant to the Court’s Decision, the Board sent the Veteran and his representative notice that he could submit additional evidence and argument in support of his appeal within 90 days before the Board would proceed with readjudication. See Board correspondence dated November 3, 2020. The Veteran replied in November 2020 by submitting a medical opinion and requesting that he be afforded the entire 90-day period to submit additional evidence and/or argument. No further evidence was submitted prior to the expiration of the 90-day period, and thereafter the Veteran’s representative submitted an appeal brief. Discussion Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board previously determined that the April 2009, September 2016, and March 2017 VA medical opinions are inadequate, and the Court determined that the July 2018 VHA opinion is inadequate. The Board may consider only independent medical evidence to support its findings and may not substitute its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Subsequent to the Court’s remand, the Veteran submitted a favorable nexus opinion generally asserting that the Veteran’s lumbar and cervical pain are “consistent with an injury from the time period of his service.” See Correspondence dated October 15, 2020 from D. Berry, D.C. However, there are deficiencies in this opinion in that it discusses pain associated with the Veteran’s cervical, thoracic, and lumbar areas of the spine, but does not specify which area of the spine is related to an in-service injury, and it does not address when the Veteran’s symptoms began or the reports of back pain and the diagnosis of chronic lumbar strain during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Moreover, the opinion does not address the Veteran’s report at enlistment of a prior back injury and whether any currently diagnosed back disorders clearly and unmistakably preexisted service, a question that remains central to this claim. See Court Memorandum Decision dated July 21, 2020. Accordingly, remand is necessary to obtain a VA medical opinion addressing the etiology of the Veteran’s back disability. See Barr, supra. The Court, in its July 2020 Decision, emphasized that “the Board must consider evidence in the record of post-service chiropractic treatment that is potentially favorable.” See Court Memorandum Decision dated July 21, 2020 at pg. 6. During the September 2016 VA examination, the Veteran reported that he received chiropractic care after discharge from service; however, the claims file includes no private or VA records of post-service treatment for a back disability. While the Board recognizes that with the passage of time some records may no longer be available, in his October 2020 opinion, D. Berry, D.C. noted that the Veteran has been a patient in his office since May 2016 regarding back and neck pain. Thus, the medical opinion indicates that there are outstanding treatment records that are potentially favorable to the Veteran’s claim. Accordingly, on remand the Veteran shall be given another opportunity to submit and/or identify outstanding treatment records relevant to his back disability as well as any other evidence that may support his claim not presently of record. The Veteran is reminded that he bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Provide the Veteran with the requisite authorization/consent forms needed to identify and request private treatment records relevant to his back disabilities, including records of chiropractic care from D. Berry, D.C. Allow a reasonable time for reply from the Veteran or his representative. All records obtained pursuant to this directive should be uploaded to the electronic file. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted in the record and the Veteran and his representative must be informed in writing. 3. Thereafter, obtain a VA medical opinion from a VA physician (M.D.) with appropriate expertise in orthopedic medicine to determine the nature and likely etiology of the Veteran’s currently diagnosed back disabilities. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. If an examination(s) is performed, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify the currently diagnosed back disabilities that have been present at any point during the appeal period, which commenced on February 19, 2009. (b) Whether the Veteran’s currently diagnosed back disabilities clearly and unmistakably preexisted service, and, if so; (c) Whether such preexisting currently diagnosed back disabilities clearly and unmistakably were NOT aggravated by service. (d) If any currently diagnosed back disabilities are found to have not clearly and unmistakably preexisted service, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that these back disabilities onset during service, manifested within one year after service separation, or are otherwise etiologically related to service. *In answering these questions, the VA examiner should consider: (i) The Veteran’s lay statements of record that he received chiropractic care for his low back after his separation from service (see VBMS entry with document type “C&P Exam,” receipt date 09/20/2016, at page 3); (ii) Evidence in the Veteran’s service treatment records, including his July 1969 enlistment medical history form reflecting that he endorsed back trouble identified as a back strain from a football injury, the July 1969 enlistment medical examination form reflecting a normal spine evaluation, and in-service reports of low back pain/problem on October 24, 1969 and October 28, 1969, the February 5, 1970 diagnosis of low back pain, and the April 24, 1970 impression of lumbar strain, chronic (see VBMS entry with document type “STR - Medical,” receipt date 12/31/2014, at pages 5, 33, 36-42); and (iii) The October 15, 2020 nexus opinion of D. Berry, D.C. (see VBMS entry with document type “Medical Treatment Record - Non-Government Facility,” receipt date 11/16/2020). *The examiner should note that the Board of Veterans Appeals and the U.S. Court of Appeals for Veterans Claims have found inadequate the previous medical opinions of record relevant to this claim. The VA examiner must provide a detailed rationale for all opinions rendered. If the examiner cannot provide the requested information without resort to speculation, it must be so stated with reasons why, and if an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.