Citation Nr: 21014516 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-38 264A DATE: March 12, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served from December 1976 to February 1988. He was awarded the Air Force Commendation Medal with 1 Device. In an August 2018 decision, the Board the denied the claim for a back disability. That claim was appealed to the United States Court of Appeals for Veterans' Claims (Court), which granted a Joint Motion for Partial Remand (JMPR) in October 2019, vacating that portion of the Board decision that denied service connection. In November 2017, the Veteran testified at a hearing before one of the undersigned Veterans Law Judges (VLJ). A transcript of that hearing is associated with the record. In October 2020, the Veteran testified at a hearing before another of the undersigned VLJs and a transcript of that hearing is also associated with the record. In a statement dated in November 2020, the Veteran’s representative specifically declined a hearing with a third VLJ. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Entitlement to service connection for a back disability is remanded. The parties to the JMPR agreed it was unclear whether complete service treatment records had been obtained. The record included several military entrance and exit examination reports and there is a PIES response indicating attachment of all available requested records. However, the parties noted that the Veteran reported to a doctor shortly after service that he had a history of back pain and had “received therapy” during service. At a hearing in October 2020, the Veteran reported that he was treated at the base hospital for his back while in-service. There are no records of back treatment in the service treatment records associated with the file. On remand, efforts should be made to determine whether there are additional records that could be obtained. The claim is also remanded to afford the Veteran a VA examination. The Veteran testified that he injured his back during service, has had continuous back pain since and told a private physician in October 1989 that he had back pain for “many years” and had been treated during service. 38 C.F.R. § 3.159 (c)(4) In October 2020 the Veteran’s representative asked the Board for information as to the qualifications of the VA examiner who conducted the examination “relied upon” by the Agency of Original Jurisdiction (AOJ). The representative did not identify a specific examination but requested the information in order to make a detailed objection. There was no VA examination conducted as part of the current appeal, but the record includes an October 1989 VA examination. In a February 2021 response, the Board denied the request because the Board does not have any documents that would be responsive to the request. Given the long period of time since the 1989 examination, the Board finds it impractical to attempt to obtain information to demonstrate the competence of that VA examiner. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The matters are REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran’s complete service treatment records, including any inpatient treatment records. Document all requests for information as well as all responses. 2. After completion of the foregoing, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and likely etiology of any diagnosed back disability. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Identify all currently diagnosed back disabilities. (b) Is it at least as likely as not that any currently diagnosed back disability is related to the Veteran’s service? Why or why not? M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.