Citation Nr: 21023138 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-24 133 DATE: April 20, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for a disability manifested by chest pain is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1984 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board issued a decision that denied the Veteran’s service connection claims for a low back disability and a disability manifested by chest pain. The Veteran appealed the Board’s April 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). Thereafter, in a September 2019 Memorandum Decision, CAVC vacated the Board’s decision and remanded for readjudication consistent with the decision. In June 2020 and December 2020, the Board remanded these claims for further development. The December 2020 Board remand mandated a new VA examination and nexus opinions. The examiner was instructed to explicitly address the Veteran’s competent reports of symptoms since service that have persisted through the present. The Board also noted that the lack of post-service treatment records, alone, cannot form the basis of a medical opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The January 2021 VA examiner offered negative direct service connection nexus opinions with respect to both disabilities on appeal. Again, the examiner relied almost solely on the lack of objective medical evidence of chronic disabilities. The examiner described these disabilities as “acute” in nature without further explanation as to how they resolved or whether any residual symptoms or effects may have worsened or persisted. Further, the Veteran’s subjective report of symptoms were eschewed in favor of “objective’ medical evidence of a chronicity of care, despite the Board’s prior guidance. Consequently, the Board finds there has not been substantial compliance with its December 2020 remand directives and new VA medical opinions must be obtained on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA or private treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed low back disability. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The claims folder, to include a complete copy of this Remand, must be made available to and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his disability. Upon review of the file, and interview and examination of the Veteran, the examiner is asked to respond to each of the following: (a.) Identify all current back disabilities. (b.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any of the above-identified low back disabilities had onset during the Veteran’s service or is otherwise related to service. In forming the opinions, the examiner is asked to consider and explicitly address the Veteran’s complaints of lower back pain in October 1984 and February 1985; and the Veteran’s competent lay statements indicating that low back pain began in service and persisted to the present. The Board notes that if the examiner concludes that the Veteran’s February 1985 low back pain resolved, the examiner must explicitly explain how this medical conclusion was reached. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed disability manifested by chest pain. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The claims folder, to include a complete copy of this remand, must be made available to and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his disability. Upon review of the file, and interview and examination of the Veteran, the examiner is asked to respond to each of the following: (a.) Identify all current chest wall disabilities and/or any disabilities manifesting in chest pain. The examiner should note that a disability for VA purposes exists even if symptoms cannot be attributed to a specific diagnosis, if pain symptoms cause functional impairment. (b.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any current disability manifesting in chest pain arose during service or is otherwise related to service, to include the Veteran’s numerous complaints of and treatment for in-service complaints of chest congestion. In forming the opinion, the examiner is asked to consider and address the Veteran’s complaints of and treatment for chest congestion and upper respiratory disabilities in service; and Veteran’s competent lay statements indicating that his chest pain began in service and persisted to the present. All opinions should be supported by a medical explanation or rationale. 3. Then, readjudicate the issues on appeal. If the benefits sought remain denied, send the Veteran and his attorney a supplemental statement of the case. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.