Citation Nr: 21021467
Decision Date: 04/13/21	Archive Date: 04/13/21

DOCKET NO. 19-14 577
DATE: April 13, 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 September 1963 to September 1966.

In April 2021, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing.

The Board notes that the Veteran submitted a VA Form 10182 in September 2019, which was over 60 days since the February 2019 Statement of the Case (SOC), and over a year since the May 2018 rating decision.  Accordingly, the VA Form 10182 cannot be considered a timely opt-in to the AMA system, and the appeal remains in the legacy.  See 38 C.F.R. § 3.2400(c)(2).

The issue has been expanded and recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009).

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, based on statements made at the April 2021 videoconference hearing, the Board finds that there may be outstanding treatment records to obtain and associate with the claim file.

In addition, the Veteran should be scheduled for a VA examination to address a potential nexus between his claimed disability and a claimed in-service injury.  The Veteran indicates that he injured his back in service, and that it has persisted since his discharge.  See Statement, July 2017.  The Board notes that the Veteran has not been afforded a VA examination for this claimed disability.  Accordingly, the Board will afford him the opportunity upon remand.

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 VA and/or private treatment records, pertaining to the issue on appeal.

All efforts 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, schedule the Veteran for a VA examination to clarify the diagnosis of his claimed back disability and to address the etiology of any diagnosed disability(ies).  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.  The examiner is asked to specifically address the Veteran’s lay statements regarding his in-service injury, as well as his contentions regarding his experiences post-service, particularly, that his back condition began in service and has persisted since discharge.  See Statement, July 2017.

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.