Citation Nr: 21025391 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-25 527 DATE: April 28, 2021 REMANDED Entitlement to service connection for a back disability, to include ankylosing spondylitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge (VLJ) at a May 2014 Board hearing. In correspondence dated in June 2018, the Veteran was informed that the VLJ who conducted his May 2014 hearing had since been appointed as the Board’s Chairman, and that the law required the Chairman to now participate in the proceeding assigned to a panel. 38 U.S.C. § 7102(b). The Veteran was given the option to attend a hearing before the two additional VLJs assigned to the panel to decide his appeal, but in correspondence received in July 2018, he waived his right to appear at any additional hearings. Regrettably, upon review of the record, the appeal must be remanded for additional evidentiary development as discussed below. Following an April 2017 Board decision, the United States Court of Appeals for Veterans’ Claims (Court), in February 2018, vacated the decision and remanded the matter via a Joint Motion for Remand (JMR) addressing the need to undertake better efforts to obtain the Veteran’s Workers’ Compensation records and obtain a sufficient medical nexus opinion. In August 2018, the Board implemented the Court’s JMR and remanded the appeal in August 2018, where it was remanded for the RO to undertake an additional attempt to obtain the Veteran’s Workers’ Compensation records and schedule the Veteran for a new VA examination that appropriately considered the Veteran’s lay reports and Workers’ Compensation records. In May 2019, the RO sent a notice letter, for the second time, requesting the Veteran’s assistance in obtaining his Workers’ Compensation records. The Veteran did not respond. The Veteran attended a July 2019 VA examination, where he reported that his ankylosing spondylitis was undergoing current treatment by Dr. W. in Pawtucket, Rhode Island, and he had been referred to an unidentified specialist. The VA examiner also referenced historical treatment records by Dr. Z, which are already associated with the claims file. The VA examiner issued a negative nexus opinion, noting that the Veteran’s condition is autoimmune in nature, and it is not caused by trauma, to include his lay reports of carrying a heavy backpack or marching in basic training. Despite a reference earlier in the examination report to a current referral for specialized treatment, the VA examiner stated that the Veteran’s condition had not been evaluated by a specialist since 1999. In November 2020, the Board found that the July 2019 VA medical opinion was insufficient to resolve the appeal due to its incomplete nature and remanded the matter for a VA addendum medical opinion addressing whether the Veteran’s ankylosing spondylitis was incurred in or had its initial onset during service. The November 2020 VA addendum medical opinion issued a negative medical nexus statement and then noted that the Veteran had not submitted his current back treatment from his private providers and implied that this evidence may impact the VA examiner’s medical opinion. This is very similar to the issue addressed in the February 2018 JMR. Regrettably, the appeal must be remanded. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the specialist he was referred to by Dr. W for evaluation of his ankylosing spondylitis. Ask the Veteran to complete a VA Form 21-4142 for the complete records of this identified specialist, as well as all of the treatment records of Dr. W, as discussed in the July 2019 VA examination report. Make two requests for the authorized records from these medical providers unless it is clear after the first request that a second request would be futile. Please ensure all requests are documented in the record. 2. Contact the Veteran and specifically request that he complete a VA Form 21-4142 regarding his Workers’ Compensation records, as discussed at the May 2014 Board hearing. If the authorization is provided, the RO is requested to undertake appropriate efforts to obtain such evidence. The Veteran is reminded of his duty to cooperate in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 U.S.C. § 5107(a). 3. ONLY IF, the Veteran’s above-referenced private treatment records and/or his Workers’ Compensation records are received, then obtain a VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran’s current ankylosing spondylitis. Following a complete review of the electronic claims file, the VA examiner is requested to address the following inquiry: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s claimed back disability (diagnosed as ankylosis spondylitis and Bekhterev spondylitis) was incurred in or is otherwise related to his active duty service, to include his lay reports of carrying a heavy backpack and marching during basic training? The VA examiner’s medical opinion must be accompanied by a complete rationale based on the VA examiner’s clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. CYNTHIA M. BRUCE Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.