Citation Nr: 21023224 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-21 141 DATE: April 20, 2021 REMANDED Service connection for a lumbar spine disability, to include as secondary to Agent Orange exposure; hazardous materials; depleted uranium and toxic chemicals, is remanded. Service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD) and emphysema, to include as secondary to Agent Orange exposure; hazardous materials; depleted uranium and toxic chemicals, is remanded. REASONS FOR REMAND The Veteran had active service from December 1966 to November 1968. He served in the Republic of Vietnam in 1968. The Board thanks the Veteran for his service to our country. A January 2020 Board decision denied the claims on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) in November 2020. In a November 2020 order, the Court granted the Joint Motion and remanded the matters for compliance with its instructions. The Board remands the issues on appeal pursuant to the Joint Motion. 1. Service connection for a lumbar spine disability, to include as secondary to Agent Orange exposure; hazardous materials; depleted uranium and toxic chemicals, is remanded. The Joint Motion states that the Board failed to ensure that VA’s duty to assist was satisfied when it relied on an inadequate April 2018 VA examination of the Veteran's lumbar spine as the examiner provided a negative nexus opinion without adequately addressing the Veteran's lay reports of in-service injury and continuity of symptomatology. The Joint Motion observed that during the April 2018 VA examination, the Veteran reported experiencing “back problems all of [his] life” such that it hurts if he “twist[s] or turn[s] the wrong way.” A May 2003 VA treatment record noted the Veteran's report of residual back pain since 1967. A November 1968 report of medical history reported recurrent back pain where the Veteran was unable to assume certain positions. The Joint Motion states that on remand the Board must afford the Veteran a new examination that addresses not only his relevant medical history but also his lay statements in rendering an opinion that contains an adequate rationale. In light of the foregoing, the Board remands this issue in order for VA to provide the Veteran a lumbar spine medical examination that complies with the Joint Motion. 2. Service connection for a lung disability, to include COPD and emphysema, to include as secondary to Agent Orange exposure; hazardous materials; depleted uranium and toxic chemicals, is remanded. The Joint Motion states that the Board provided inadequate reasons and bases when it failed to address the Veteran's contention that there were outstanding service treatment and hospitalization records pertaining to his lung disability. The Joint Motion observed that in a July 2019 substantive appeal, the Veteran stated that he was hospitalized for a “lung problem” during basic training at Fort Ord. In a July 2019 response to the statement of the case, the Veteran wrote that he “didn’t see [his] record of lung problem [that he] had from basic training [… where he] was hospitalized.” The Joint Motion states that on remand the Board must address the Veteran's contention about the existence of outstanding inpatient hospital records of his lung disability and discuss whether efforts need to be taken to obtain such records. In light of the foregoing, the Board remands this issue in order for VA to attempt to obtain the identified medical records as well as any updated medical records. The matters are REMANDED for the following action: 1. Please make efforts to obtain any outstanding VA and non-VA treatment records pertinent to the lungs and lumbar spine. 2. Please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and medical opinion for his lumbar spine. The clinician must review the eFolder. (a) The clinician is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current lumbar spine disability is related to the Veteran's service. In responding to the above, the clinician is requested to address the Veteran’s statements that he has had back pain since service: (i) During the April 2018 VA examination, the Veteran reported experiencing “back problems all of [his] life” such that it hurts if he “twist[s] or turn[s] the wrong way.” (ii) A May 2003 VA treatment record noted the Veteran’s report of residual back pain since 1967. (iii) A November 1968 report of medical history reported recurrent back pain where the Veteran was unable to assume certain positions. The clinician must provide a complete rationale for any opinion expressed. If the clinician cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and identify what, if any, additional evidence would permit such an opinion to be made. 3. Please document all efforts to obtain records of a hospitalization for a lung disability during basic training at Fort Ord. The Veteran was stationed at Fort Ord from December 1966 to April 1967. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.