Citation Nr: 21014968
Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 17-07 248
DATE: March 16, 2021

REMANDED

Entitlement to service connection for a low back disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1965 to November 1966. The Veteran died in May 2018. The Appellant claims as the Veteran’s surviving spouse.

In April 2018, the Board denied the above claim. In April 2019, pursuant to a Joint Motion to Remand (JMR), the United States Court of Appeals for Veterans Claims (CAVC or the Court) vacated that decision and returned the matter to the Board. In September 2019, the Board again denied the Veteran’s claim for service connection for a low back disorder. In October 2020, the Court vacated that Board decision pursuant to a JMR and remanded the claim for further development. 

The 2020 JMR states, one, the Board shall obtain the Veteran’s unobtained VA treatment records from the Syracuse VA Medical Center dated from January 2005 to December 2007. Second, the September 2019 Board decision failed to comply with the April 2019 JMR. The JMR states that if the Board finds that the Veteran’s statements of continuity of symptomology are credible, it must discuss whether a new VA medical opinion is warranted. In the September 2019 Board decision, it was determined that the Veteran’s reported history of continued symptomatology since service where competent, but there were no findings regarding credibility. However, the Board did not discuss whether a new VA opinion was necessary. The prior December 2016 VA opinion’s rationale was that the Veteran’s back pain was more likely age-related, the rationale also reported that the back pain increased due to working at the Post Office. In other words, the rationale suggests that back pain already existed but was increased by post-service employment. Therefore, a new opinion is warranted to provide an opinion with clearer supporting rationale.

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records, specifically to include from the Syracuse VA Medical Center dated from January 2005 to December 2007.

2. Obtain an addendum opinion from regarding whether the Veteran’s low back disorder(s) (scoliosis, degenerative changes, and arthritis) is/are at least as likely as not (50 percent or more) incurred in service, to include as due to an injury of the back in March 1966. 

The examiner is to be made aware that satisfactory lay or other evidence that an injury was incurred in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence. The Veteran has been awarded the Purple Heart and has claimed his current back disorder is due to the injury for which he received the Purple Heart in March 1966. 

The examiner should also consider that the Veteran, in the past, reported a history of continued back pain since the in-service injury, with the pain worsening over the years, prior to when a back disorder was first found by a medical professional. Therefore, the examiner should not rely only upon when a diagnosis was first made. 

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P. Yoffe, 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.