Citation Nr: 21021595 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-12 705 DATE: April 13, 2021 REMANDED Entitlement to service connection for a tailbone injury is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1963 to March 1965 with additional service in the Army Reserves and Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. This matter was previously before the Board in February 2019 and July 2020 and was remanded for further development. The claims have been returned to the Board for further appellate review. 1. Entitlement to service connection for a tailbone injury is remanded. 2. Entitlement to service connection for a left hip disorder is remanded. 3. Entitlement to service connection for a low back disability is remanded. The Veteran contends that service connection is warranted for a tailbone injury, a left hip disability, and a low back disorder. In his January 2018 Notice of Disagreement, he reported that he was injured while on active duty in 1962. Specifically, in his hearing, he reported that he injured his back, tailbone, and left hip in service after he fell out of a truck. He also suggested that his left hip disability was caused or aggravated by his back. Pursuant to the Board’s prior remand directives, examinations and medical opinions were obtained to determine the etiology of the Veteran’s tailbone, back, and left hip disabilities. In a January 2021 medical opinion, the examiner found that the Veteran’s tailbone, back, and left hip disabilities were unrelated to service. In doing so, the examiner noted that he was unable to find any records showing a causal link of the claimed tailbone condition or left hip condition to a fall in service. The examiner also noted that a January 1999 surgical report noted the Veteran had developmental dysplasia of the left hip which is a congenital condition that has a higher degree of associated arthritis as the person ages. With regard to the Veteran’s back disability, the examiner noted that records do not show any repeat or chronicity of care until many years following the reported date of fall. However, the Board finds the opinion is inadequate. The Board notes that the examiner relied on the absence of treatment in service which does not preclude service connection. In addition, a July 2015 VA email correspondence shows that the Veteran’s service treatment records (STRs) from 1963 to 1969 have been deemed unavailable; therefore, the examiner would not have located a documented injury and should have considered the Veteran’s competent and credible reports of his medical history and symptoms. Moreover, military personnel records show that the Veteran had Army Reserve and Army National Guard service from 1978 to 1992; however, these records are not of evidence and it does not appear that the RO has attempted to retrieve them. In this regard, the Board notes that service connection may also be available if the Veteran’s asserted conditions were caused or aggravated by a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). These records are relevant has the Veteran reported having back surgery in 1984 and 1989, which coincides with his time in the National Guard. Given the above, the Board finds that the RO should attempt to retrieve the Veteran’s outstanding STRs from his active duty, reserve, and national guard service. In addition, new medical opinions should be obtained to determine the etiology of the Veteran’s tailbone, back, and left hip disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims folder. 2. Verify the Veteran’s periods of active duty, ACDUTRA, and/or INACDUTRA. 3. Contact the appropriate source to obtain any outstanding service treatment records from the Army Reserves and Army National Guard. All reasonable attempts should be made to obtain such records, and the claims file must be documented accordingly. 4. After completion of the above development, schedule the Veteran for VA examinations with the appropriate clinicians to determine the etiology of the Veteran’s left hip, tailbone, and low back disabilities. Provide the VA examiners a list of all active duty, ACDUTRA, and INADUCTRA periods. Each examiner must review the entire claims file, including past Board decisions and the current Remand. Any indicated studies should be performed. LEFT HIP: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a left hip disability that was incurred in service, or is otherwise related to his active duty service, to include his reported fall in service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. TAILBONE: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a tailbone disability that was incurred in service, or is otherwise related to his active duty service, to include his reported fall in service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. BACK: The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a back disability that was incurred in service, or is otherwise related to his active duty service, to include his reported fall in service; OR that the disability was caused as a result of a period of ACDUTRA or INACDUTRA. In rendering the requested opinions, the examiner is advised of the following: i. that the Veteran is competent to report in-service injuries, his symptoms, and history. Such reports must be specifically acknowledged and considered in formulating any opinions. ii. The lack of documented treatment in service cannot serve as the sole basis for a negative finding, particularly where the service treatment records are unavailable. All opinions should be supported by a clear and detailed rationale. 4. The AOJ should ensure that the examination reports comply with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. Then, readjudicate the claims. If the Veteran’s STRs remain missing, VA must employ a heightened consideration of the benefit-of-the-doubt standard and rely on the competent and credible reports of medical history and symptoms. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate 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.