Citation Nr: 21021831 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-42 683 DATE: April 14, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to September 1980. In July 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board most recently remanded the claim in September 2020 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a back disability is remanded. The claim must be remanded again because the November 2020 VA opinion is inadequate. The examiner said they could not provide an opinion “without resourcing to mere speculation.” As rationale, the examiner reviewed a 2010 medical report and concluded the Veteran had a pre-existing condition of congenital spinal stenosis “which onset would had [sic] been prior to service.” There is no indication of a back defect at enlistment examination prior to service and the Veteran is presumed sound. It is also unclear whether the Veteran’s complete service treatment records (STRs), to specifically include any service in Germany in 1978 (or formal finding of their unavailability), have been obtained. A September 2020 request for the records is included in the record. The Veteran’s STRs, to specifically include any service in Germany in 1978, have not been made available in response to the request. See November 2020 Correspondence. Furthermore, no attempt was made to obtain the names and addresses of all medical care providers who treated the Veteran for any back complaints since service not already associated with the record. Consequently, VA has not fulfilled its duty to assist in this case and a remand is necessary in order to attempt to obtain the missing records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. After obtaining all related records, a medical opinion should be obtained. 38 C.F.R. § 3.15(c)(4). The matters are REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran’s complete service personnel records and service treatment records, to specifically include any service in Germany in 1978. If these records are unavailable, make a formal determination of their unavailability and notify the Veteran. 2. Take all appropriate action to obtain the names and addresses of all medical care providers who treated the Veteran for any back complaints since service not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since September 2020. 3. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding the etiology of any back disability. If an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) is deemed necessary to respond to the questions presented, one should be scheduled. Copies of all pertinent records should be made available to the examiner for review. Based on a review of the record, and any tests or studies deemed necessary, the examiner should provide opinions as to the following: (a.) Identify all diagnosed back disabilities since November 2012. (b.) For each diagnosed back disability, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the back disability existed prior to the Veteran’s entry onto active duty? (c.) If the answer to (b) is yes, for each diagnosed back disability, does the evidence of record clearly and unmistakably show that the preexisting back disability was aggravated by service or that any increase in disability was “beyond the natural progression” of the disease? The examiner is requested to identify any clear and unmistakable evidence with specificity. (d.) If the answer to either (b) or (c) is no, for each diagnosed back disability, is it at least as likely as not related to an in-service injury, event, or disease, to include falling off a forklift during his service? Why or why not? In providing the opinion, the examiner should consider and discuss as necessary the Veteran’s lay testimony that he injured his back during service and has had continued symptomatology since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.