Citation Nr: 21025607 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-12 512 DATE: April 28, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a brain tumor, to include as due to herbicide agent exposure in service, is remanded. Entitlement to service connection for residuals of a broken nose is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to January 1971, and in the Army National Guard from January 1971 to September 1992. 1. Entitlement to service connection for a low back disability is remanded. In January 2019, the Board remanded the claim to schedule a VA examination to determine the etiology of a low back disability. In listing the reasons for the remand, the Board noted that, in a May 2015 VA medical examination report, a VA examiner opined that the low back disability was not related to service. In explaining that opinion, the examiner stated that the Veteran's service or National Guard medical records contained only a single notation indicating low back pain in 1983. In response, the Board noted that the National Guard records contained a subsequent April 1984 record, indicating further treatment for a low back disability. Moreover, the Board noted that the Veteran had offered lay evidence indicating that he incurred a back injury during a combat incident in Vietnam. Because VA concedes that the Veteran is a combat Veteran, the Board noted that VA must consider the Veteran's assertions of an event during combat are to be presumed credible if consistent with the time, place, and circumstances of such service. In a subsequent October 2019 VA medical examination report and opinion, written in attempted compliance with the Board's remand requests, an examiner opined that the Veteran's low back disability was not at least as likely as not related to service, because the only noted instance of low back disability symptomatology during service was noted in the May 1983 National Guard treatment record. The examiner indicated that the Veteran did not report any other low back disability symptomatology until 2013, decades after separation from service. The examiner did not note the April 1984 National Guard treatment record, showing treatment for low back pain, and did not note the Veteran's lay reports regarding the etiology of the low back disability, as requested by the Board. Therefore, remand is necessary for additional examination. 2. Entitlement to service connection for a brain tumor, to include as due to herbicide agent exposure in service, is remanded. In January 2019, the Board remanded the claim for to schedule a VA examination to determine the etiology of a claimed brain tumor. In an October 2019 VA medical examination report and opinion, a VA examiner opined that the claimed brain tumor was not at least as likely as not related to service, because VA records indicated that the Veteran had only been diagnosed in 2013 with a left superior parietal lobe mass. The examiner stated that the claims file did not include a diagnosis of a meningioma. In writing the opinion, the October 2019 VA examiner did not note that, in a September 2017 VA treatment record, a VA neurosurgeon indicated that the Veteran had a stable left parietal meningioma. Remand is necessary to schedule additional examination. 3. Entitlement to service connection for residuals of a broken nose is remanded. In January 2019, the Board remanded the claim to schedule a VA examination to determine the etiology of claimed residuals of a broken nose. In listing the reasons for the remand, the Board noted that the Veteran reported injuring his nose during a combat incident during Vietnam. The Board also indicated that, in a January 2015 VA treatment record, a VA examiner reported performing a septoplasty to treat a deviated septum. In a subsequent October 2019 VA medical examination report and opinion, written in attempted compliance with the Board's remand requests, an examiner opined that the residuals of a broken nose were not at least as likely as not related to service, because a review of the claims file did not indicate any objective evidence of a broken nose or treatment for residuals, to include a septoplasty. The Board notes that the record clearly indicates that the Veteran had a deviated septum and underwent a septoplasty. Remand is necessary for an additional examination. Additionally, the Veteran served for several decades with the Army National Guard. Remand is necessary to confirm the dates of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). Finally, the VA treatment records currently in evidence contain notations indicating that a VA employee scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated December 28, 2019; December 26, 2019; January 16, 2018; November 16, 2017; February 2, 2017; and September 23, 2016. 2. Determine the Veteran's dates of ACDUTRA and INACDUTRA. If necessary, request all necessary pay or retirement point records to verify the dates of service. 3. Then, schedule the Veteran for a VA orthopedic examination with a VA orthopedist, to determine the etiology of any low back disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, to include the May 1983 National Guard service medical and personnel records, indicating low back disability symptoms following an injury, and the April 1984 National Guard service medical record, indicating treatment for low back pain; the post-service treatment records; and the Veteran’s lay history, to include his account of an in-service Vietnam combat event resulting in a low back injury, as recorded in the Veteran's July 2016 statement to a Senator. A complete rationale should be provided for all opinions and conclusions. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, the examiner is asked to also provide the following opinions: (a.) Diagnose all low back disabilities found, or shown during the pendency of the appeal. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any low back disability had its onset during service or is related to any event, injury, or disease during active service, dating from January 1968 to January 1971, to include as due to a combat injury during service. The examiner should note that the Veteran is a combat Veteran, and, therefore, lay statements about an injury during combat in service, as noted of record, should be considered as credible evidence of an in-service injury. (c.) If arthritis of the lumbosacral spine is diagnosed, opine whether it is at least as likely as not (50 percent or greater probability) that right knee arthritis (1) began during active service, (2) manifested within one year after the January 1971 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine whether it is at least as likely as not (50 or greater probability) that any current low back disability was caused in the line of duty during a specific period of ACDUTRA or INACDUTRA? 4. Schedule the Veteran for a VA examination with a VA oncologist, to determine the etiology of claimed brain tumors. The examiner must review the record and should note that review in the report. The examiner should note that the Veteran is presumed to have been exposed to herbicide agents during service in Vietnam. In reviewing the record, the examiner should note the service medical records; the post-service treatment records, to include the September 2017 VA treatment record in which a VA neurosurgeon indicated that the Veteran had a stable left parietal meningioma; and the Veteran’s lay reports of the etiology of the disability. A complete rationale should be provided for all opinions and conclusions. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, the examiner is asked to also provide the following opinions: (a.) Diagnose all brain masses, to include tumors, found, or shown during the pendency of this appeal, to specifically include left superior parietal lobe mass and meningioma. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any brain mass, to include a tumor or meningioma, had its onset during the Veteran's service or is related to any event, injury, or disease during the Veteran's active service, dating from January 1968 to January 1971, to include the Veteran's presumed exposure to herbicide agents. 5. Then schedule the Veteran for a VA examination to determine the etiology of the claimed residuals of a broken nose. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records; the post-service treatment records, to include those indicating treatment for a deviated septum, culminating with a January 2015 septoplasty; and the Veteran’s lay history, to include his account of an in-service Vietnam combat event, resulting in a nose injury as recorded in the Veteran's July 2016 statement to a Senator. A complete rationale should be provided for all opinions and conclusions. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, the examiner is asked to also provide the following opinions: (a.) Diagnose all potential residuals of a broken nose found or shown during the pendency of this appeal, to include septoplasty. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any potential residuals of a broken nose had their onset during the Veteran's service or are related to any event, injury, or disease during the Veteran's active service, dating from January 1968 to January 1971, to include as due to a combat injury during service. The examiner should note that the Veteran is a Vietnam combat Veteran, and, therefore, all lay statements about a combat injury during service, as noted in the record, should be considered as credible evidence of an injury during service. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any current residuals of a broken nose were caused in the line of duty during a specific period of ACDUTRA or INACDUTRA. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.