Citation Nr: 21023853 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-03 379 DATE: April 21, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1970 to June 1974 and from August 2004 to January 2006 including service in Southwest Asia. He had additional service in the Unites States Army Reserve and the Army National Guard, to include various periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA), between 1974 and 2007. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the electronic claims file. In November 2019, the Board of Veterans’ Appeal (Board) issued a decision and remand that, among other things, denied the Veteran’s claim of service connection for a back disability and remanded claims of service connection for bilateral hearing loss, sleep apnea, a right foot disability, bilateral knee disabilities, a neurological disorder affecting the bilateral legs and feet, and an acquired psychiatric disorder including posttraumatic stress disorder. As to the claim of service connection for a back disability, the Veteran appealed the Board’s November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 order, which incorporated the parties November 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the November 2019 Board decision to the extent that it denied service connection for a back disability. As to the service connection claims Remanded by the Board in November 2019, in a November 2019 rating decision the RO granted service connection for bilateral hearing loss, a right foot disability, bilateral knee disabilities, a neurological disorder affecting the bilateral legs and feet, and an acquired psychiatric disorder including posttraumatic stress disorder given the Veteran a combined 70 percent rating. Therefore, these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (held that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Moreover, the claim of service connection for sleep apnea has not as yet been returned to the Board. Therefore, the Board finds that no further action is required as to these issues at this time. Entitlement to service connection for a back disability is remanded. As to the claim of service connection for a back disability, the Veteran contends his current disability related to his active duty military service. Specifically, he claims that he worked on tanks and wheeled vehicles during his first period of active duty service and that he would often slide off these vehicles. He believes that he injured his back as a result of sliding off the vehicles. See Board Hearing transcript, p. 5. He further claims that he had to carry a lot of heavy gear and weapons on his back when he was stationed in Iraq during his second period of active duty service. He believes that carrying the extra weight on his back while traversing uneven terrain irritated his back. Id. The Board notes that the JMPR vacated and remanded the November 2019 Board decision, in part, because a private physician diagnosed lumbar radiculopathy in October 2012. Given the above history testified about by the Veteran, the fact that he is competent and credible to report on events in service and observable symptomatology (see Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009), the fact that the appellant has over 36 years of combined active duty and Reserve Component service, and the October 2012 diagnosis noted by the JMPR, the Board finds that the criteria to provide the claimant with a VA examination to obtain an etiology opinion have know been met. See McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). Therefore, the Board finds that a Remand to provide the Veteran with the VA examination is required. See 38 U.S.C. § 5103A(d); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) (holding, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any). If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. In order to comply with the JMPR, provide the Veteran with a VA examination to obtain a medical opinion as to the origins of his back disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for all back disabilities diagnosed at the examination and during the pendency of the appeal. If the Veteran does not have a back disability, this should be indicated. In this regard, if the record shows that the Veteran previously had any back disability and it resolved, the examiner must say so. b. As to each diagnosed back disability (if any), provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during any period of qualifying active duty service. c. Provide an opinion as to whether the Veteran was diagnosed with arthritis of the back in the first year following any period of qualifying active duty service. d. If a nexus to his service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. e. If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. The examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service: In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. If the claim of service connection for a back disability is not thereafter granted, the RO must issue a supplemental statement of the case that includes, among other things, notice of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.