Citation Nr: 21025406 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-20 210 DATE: April 28, 2021 REMANDED The issue of entitlement to service connection for a low back condition is remanded. The issue of entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California. In February 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge, and a copy of the hearing transcript has been added to the record. Although the Board regrets the additional delay, remand is again necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). A detailed procedural history of the adjudication of the instant claims before the Board and the United States Court of Appeals for Veterans Claims (Court) is of record. See, e.g., Board Remand dated November 12, 2020. AOJ Failure to Obtain Records The Veteran’s claims for entitlement to service connection for a low back condition and bilateral upper and lower extremity peripheral neuropathies were denied by the AOJ in November 2008, and on appeal, the Board ultimately denied the claims in September 2016. The Veteran appealed the Board’s September 2016 decision, and in June 2018 the Court, by Memorandum Decision, vacated the Board’s September 2016 decision and remanded the claims. The Court observed, in part, that while the Board in a May 2015 remand had instructed the VA Regional Office, the agency of original jurisdiction (AOJ), to obtain the Veteran’s private treatment records dating from 1972 from the Loma Linda VAMC, the AOJ “provided no information regarding any attempts to obtain these records.” See Memorandum Decision dated June 29, 2018 at pgs. 5. The Court cited several reasons for finding the August 2015 examination and opinions inadequate, including that the examiner’s conclusions are “based on an absence of treatment records” prior to 2008, and cautioned the Board not to rely on them in any way. Id.at pgs. 5-6. Thereafter, the Board remanded the claims in December 2018, June 2020, and November 2020 directing that the AOJ obtain the VistA Imaging records, associate the records with the Veteran’s claims file, and then obtain VA examinations and/or etiology opinions. According to the record, in each instance, the AOJ made no effort to obtain the VistA Imaging evidence. Central to this matter is the Veteran’s testimony during his February 2015 Board hearing that he physically delivered private medical records dating from as early as 1972 that are relevant to his claims to the Loma Linda VA Medical Center (VAMC) to be scanned and incorporated into his claims file. As the Board has previously emphasized, VA treatment records from October 2008 show that non-VA records were scanned into VistA Imaging. See VA HIMS Non-VA/Outside Records dated October 14, 2008. The Board has repeatedly directed that the AOJ obtain these records and associate them with the Veteran’s claims file. See Board Remand dated December 28, 2018 at pg. 4; Board Remand dated June 24, 2020 at pg. 5; Board Remand dated November 12, 2020 at pg. 5; see also Board Decision and Remand dated May 4, 2015 at pg. 6. The remands also requested VA examinations and/or medical opinions addressing the etiology of the Veteran’s a low back condition and bilateral upper and lower extremity peripheral neuropathies. In each instance, either the Board or the Court found the VA examinations and opinions inadequate, in part, because of deficiencies arising from less than thorough review of the treatment records by examiners and a claims file that both the Court and the Board have concluded, to date, is incomplete due to the AOJ’s repeated failure to comply with the Board’s remand directive to obtain records from VistA Imaging. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Moreover, until the AOJ obtains the records from VistA Imaging or determines that the records are not available and so indicates in the Veteran’s claims file, VA etiology opinions obtained in association with these claims will likely be rendered inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Accordingly, a remand to obtain the Veteran’s outstanding private treatment records in the custody of VA, and thereafter obtain new VA medical opinions regarding the etiology of the Veteran’s back disabilities and multiple neuropathies is warranted. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). The matters are REMANDED for the following action: 1. BACKGROUND FOR AOJ ADJUDICATORS: This matter is being remanded because the AOJ on three prior occasions has not complied with the Board’s directives to obtain the Veteran’s private treatment records scanned into VistA Imaging, which the United States Court of Appeals for Veterans Claims (Court) specifically found in a June 2018 Memorandum Decision has rendered the record incomplete in this case. The Board emphasizes that multiple VA medical opinions obtained in the development of the Veteran’s claims have been rendered inadequate due, in part, to the AOJ’s noncompliance with this development. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The AOJ’s continued noncompliance with the Board’s repeated request for this development is in contravention of the Board’s remand directives and the Court’s holding in Stegall v. West, 11 Vet. App. 268, 271 (1998) that a remand confers on the claimant, as a matter of law, the right to compliance with a remand order. 2. OBTAIN the non-VA treatment records referenced in an October 14, 2008 VA treatment record (see, e.g., VBMS entry with document type “CAPRI,” receipt date 01/05/2021, at page 1475 of 1559), as well as ALL OTHER outstanding records relevant to the Veteran’s claim of service connection for a back disability and bilateral upper and lower extremity peripheral neuropathy contained in VISTA IMAGING and other VA records systems, and associate all records obtained with the Veteran’s electronic claims file. ALL attempts to obtain such records MUST be clearly documented in the electronic claims file. If no such records are located, that fact should be documented in MEMORANDUM in the electronic claims file along with a FINDING OF UNAVAILABILITY of the records, and the Veteran should be NOTIFIFED of such pursuant to 38 C.F.R. § 3.159(c). 3. Ensure that all outstanding and identified private and VA treatment records are associated with the claims file. 4. Then, AFTER ALL available records have been associated with the claims file, obtain addendum opinions from a different examiner than the examiners who authored the November 2019, August 2020, and December 2020 VA opinions to determine the nature, onset, and likely etiology of the Veteran’s low back condition. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. After reviewing the record and, if necessary, examining the Veteran, the examiner should render an opinion as to: whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s currently diagnosed low back condition, to specifically include degenerative arthritis, was incurred in, caused by, or is otherwise related to service, manifested within one year after service separation, or is otherwise etiologically related to service, to include the Veteran’s reports of injuring his back while lifting and carrying heavy artillery rounds while serving as a cannon crewmember. Please explain why or why not. The examiner must carefully consider the Veteran’s lay statements regarding the onset of his symptoms and continuous nature of his symptoms since service. Additionally, the examiner should closely review the Veteran’s VA and private treatment records when considering the development of the low back condition over time. The examiner must address the likelihood that in-service injuries such as the ones described by the Veteran could have caused the Veteran’s currently diagnosed low back condition. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence, particularly (1) VA and private treatment records documenting low back treatment; (2) the Veteran’s statements regarding low back pain in service and since discharge; (3) the argument with supporting treatise evidence regarding the Veteran’s in-service duties as an cannoneer outlined in the September 2020 Appellate Brief. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 5. After all available records have been associated with the claims file, obtain an addendum opinion from a different examiner than the November 2019/August 2020 VA examiner to determine the nature, onset, and likely etiology of the Veteran’s bilateral upper and lower extremity peripheral neuropathy. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. After reviewing the record and, if necessary, examining the Veteran, the examiner should respond to the following questions: (a) Is the Veteran’s peripheral neuropathy of the bilateral upper and/or lower extremities “early-onset” peripheral neuropathy? Please explain why or why not. (b) If so, is it at least as likely as not (i.e., 50 percent probability or greater) that such peripheral neuropathy manifested to at least a mild degree in severity within one year of herbicide agent exposure? Please note that exposure to herbicide agents is presumed during the Veteran’s Korean service, which ended in October 1969. (c) If “early onset” peripheral neuropathy is not diagnosed, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s bilateral upper and/or lower extremity peripheral neuropathy was incurred in, caused by, or is otherwise related to, the Veteran’s military service, to include as due to herbicide agent exposure? Please explain why or why not. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. The examiner must specifically discuss and consider service treatment records showing left foot/ankle complaints and right foot complaints in 1968 and 1969, as well as the Veteran’s lay statements regarding onset of symptoms associated with his peripheral neuropathy. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 6. Thereafter, the AOJ MUST REVIEW THE CLAIMS FILE to ensure that the foregoing requested development has been completed. In particular, ensure that all records, including treatment records contained in VistA Imaging and other VA systems, have been requested and review the requested medical opinions to ensure that each one is responsive to and incompliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). If the aforementioned development is not completed, including obtaining all treatment records in VistA Imaging, provide a written explanation to the Veteran and his representative and associate a copy of the explanation with the Veteran’s electronic claims file. Please note, if any of the directives above are not completed, this matter will be returned to the RO pursuant to the Court’s holding in Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). 7. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate period of time for response. Thereafter, the claims should be returned to the Board for further appellate review, if otherwise in order. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.