Citation Nr: 21024243 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-11 028 DATE: April 22, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in November 2015. This case was previously before the Board in May 2016, March 2018, May 2019, and November 2020 when it was remanded for further development. The matter has been returned to the Board for further appellate review. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). 1. Entitlement to service connection for a back disability is remanded. In November 2020, the Board remanded the Veteran’s claim of service connection for a back disability, finding the November 2019 medical opinion of record to be inadequate. VA provided an updated medical opinion in January 2021, at which time the examiner opined that the Veteran’s current back disability is less likely than not related to his active duty service. Unfortunately, the examination is inadequate to adjudicate the Veteran’s claim. The January 2021 examiner provided a negative nexus opinion, in part, because there is a lack of documentation of back complaints in the Veteran’s service treatment records and post-service medical records. In other words, the examiner appears to have impermissibly dismissed the Veteran’s reports of continued back problems solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Moreover, the examiner reported the Veteran was able to work as a carpenter after active duty; therefore, it is unlikely he experienced back pain because carpentry involves manual labor and lifting. Specifically, the January 2021 examiner reported the Veteran would not have been able to work as a carpenter, with a low back condition, in need of a laminectomy for ten years. However, the Veteran reported in a November 2019 VA examination that he worked as a supervisor after leaving active duty service, had back surgery in 1978, and did not begin working as a carpenter until 1988, approximately 10 years after his back surgery. This opinion is based on an inaccurate medical and factual history. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Moreover, as pointed out by the Veteran’s representative, it is not unheard of for individuals to continue working in physically demanding occupations, even with painful orthopedic conditions, and the examiner provided no cogent rationale for why the Veteran working as a carpenter would preclude the Veteran having an ongoing back issue that eventually needed surgical treatment. 2. Entitlement to service connection for a respiratory disability is remanded. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2020, the Board remanded the Veteran’s claim of service connection for a respiratory disability, finding the November 2019 medical opinion of record to be inadequate. Specifically, the Board requested the examiner identify all respiratory disabilities the Veteran may have, including pulmonary fibrosis, and opine whether it is at least as likely as not that any respiratory disability began in or was otherwise caused by the Veteran’s active duty service. The January 2021 examiner limited her opinion to whether the Veteran has any asbestos related lung conditions and did not opine whether the Veteran’s pulmonary fibrosis began in or was otherwise caused by his active duty service. Furthermore, the Board specifically requested the examiner address the Veteran’s November 2015 Board hearing testimony and his lay statements regarding continuity of symptomatology. The January 2021 examiner did not address either. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician, preferably other than the January 2021 examiner, to determine whether the current back disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the back disability began in or is otherwise caused by the Veteran’s active service. The examiner must specifically address the Veteran’s lay statements regarding continued back pain after the reported in-service accident, as well as the Veteran’s November 2015 Board hearing testimony that his 1978 back surgery was due to ongoing back pain since service and not any intervening accident. The examiner should explain why these statements, in conjunction with the medical evidence of record, do or do not support a finding that the current back disability is related to service. Any rationale for a negative etiology opinion that rests solely on a lack of documented complaints in contemporaneous treatment records will be deemed inadequate. The examiner should address all other pertinent evidence of record, including written lay statements from the Veteran, his family, and his acquaintances. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Forward the claims file to an appropriate clinician, preferably other than the January 2021 examiner, to determine whether any current respiratory disability is related to the Veteran’s military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should identify all respiratory disabilities supported by the record since approximately December 2010, including, but not limited to, pulmonary fibrosis. For each respiratory disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the respiratory disability began in or is otherwise caused by the Veteran’s active service. The examiner should specifically address the Veteran’s lay statements regarding continuity of symptomatology since onset, and any other pertinent evidence of record, including the Veteran’s November 2015 Board hearing testimony and written statements appearing in the record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.