Citation Nr: 21028964 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-47 397 DATE: May 12, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to December 1978 with additional service in the Army National Guard, to include active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history. In a February 2012 decision, the Board reopened the previously-denied claim of entitlement to service connection for a lumbar spine disorder, and remanded to the RO to afford the Veteran a VA examination. Then, in an unappealed September 2012 decision, the Board denied entitlement to service connection for a lumbar spine disorder. Thereafter, in a January 2014 rating decision, the RO continued the denial of the Veteran's claim of entitlement to service connection for a lumbar spine disorder, finding that the evidence submitted by the Veteran since the final September 2012 Board decision was not new and material. The Veteran appealed the January 2014 determination to the Board, and in a November 2018 decision, the Board denied the Veteran's petition to reopen the claim of entitlement to service connection for a lumbar spine disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Order, the Court vacated the November 2018 Board decision and granted the parties' Joint Motion for Remand (JMR), remanding the case to the Board for readjudication. In an October 2019 decision, the Board, in pertinent part, found that new and material evidence had been received to reopen the Veteran's claim, but proceeded to deny the claim of entitlement to service connection for a lumbar spine disorder on the merits. The Veteran again appealed the Board's decision to the Court. In a January 2021 Order, the Court set aside the October 2019 Board decision in part, granted the parties' Joint Motion for Partial Remand (JMPR), and remanded the case to the Board for readjudication in compliance with the JMPR. Entitlement to service connection for a lumbar spine disorder is remanded. As detailed above, this claim was remanded by the Court in January 2021 for action consistent with the terms of the parties' JMPR. The parties agreed that remand was warranted because the Board failed to provide an adequate statement of reasons or bases for its decision and failed to ensure that VA satisfied its duty to assist. See Allday v. Brown, 7 Vet. App. 517, 527 (1995); see also 38 U.S.C. § 7104(d)(1). As detailed in the JMPR, because the Agency of Original Jurisdiction (AOJ) did not reopen the Veteran's claim, and the Board did not consider and address possible prejudice before immediately considering the merits of the reopened claim, the parties to the JMPR agreed that remand was warranted to address the issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board provided an inadequate statement of reasons or bases). Since the AOJ found that new and material evidence had not been received to reopen the previously denied claim, it did not reach the merits of the claim of entitlement to service connection for a lumbar spine disorder. Regardless, in the October 2019 decision, the Board reopened the claim and denied entitlement to service connection for a lumbar spine disorder on the merits. When the Board addresses a question that has not been addressed by the AOJ, it "must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question" and "an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby." Bernard, 4 Vet. App. at 394. Here, however, the October 2019 Board decision contains no discussion of possible prejudice to the Veteran or whether he was provided adequate notice of the evidentiary requirements necessary to substantiate his claim. See, e.g., 10/01/2019 BVA Decision. Indeed, the parties found that the Board's immediate adjudication of the service connection claim on the merits deprived the Veteran of notice of any evidentiary defects, which would have been noted in the AOJ's adjudication of the issue in the first instance. In this regard, and as noted by the Veteran's representative, the Board's failure to remand to the AOJ prejudiced the Veteran because "several statutory and regulatory provisions establish extensive procedural requirements to ensure a claimant's rights to full and fair assistance and adjudication in the VA claims adjudication process." See 04/27/2021 Appellate Brief; see also Bernard, 4 Vet. App. at 392. As such, the Board finds that remand is warranted for the AOJ to consider the merits of the matter in the first instance. See id. at 394. Second, as the Veteran's representative argued in the August 2020 Appellant's Brief, the Board failed to ensure that VA's duty to assist was satisfied with regard to assisting the Veteran to locate and obtain outstanding relevant service medical and private hospital records. Here, the Board finds that the Veteran's November 2012 petition to reopen and three buddy statements reveal the existence of outstanding relevant service medical records from the Baynes-Jones Army Community Hospital in Fork Pork, Louisiana and private hospital records from Rapides Regional Medical Center in Alexandria, Louisiana. See 11/13/2012 Correspondence; see also 11/13/2012 Buddy / Lay Statements. However, a review of the claims file reveals that the AOJ made no attempts to obtain the outstanding service medical records from the National Personnel Records Center (NPRC), nor is there is evidence that VA attempted to obtain the necessary authorizations from the Veteran in order to request the private hospital records. The Board observes that in August 2019, the Veteran waived any remaining time to submit additional evidence or argument before his appeal returned to the Board. See 08/19/2019 Correspondence. However, as discussed above, the only issue previously decided by the AOJ and thus properly before the Board was the issue of whether reopening was proper based on the submission of new and material evidence. Therefore, the August 2019 waiver applied only to the issue of whether new and material evidence had been submitted, not the underlying service connection claim. As such, the Board finds that the Veteran did not waive the opportunity to submit additional evidence or argument in support of his claim of entitlement to service connection, to include the above-identified outstanding service medical records and private hospital records. Finally, the Board finds that remand is required in order to schedule the Veteran for a VA examination and obtain an adequate medical opinion. The Veteran's representative argued in the August 2020 Appellant's Brief that the Board relied on an inadequate May 2012 VA examination report and medical opinion when it denied the Veteran's service connection claim on the merits. In this regard, the May 2012 examiner failed to address whether the Veteran's pre-existing lumbar spine disorder was aggravated during service, to include any period of ACDUTRA between May 1979 and September 1982, as directed by the February 2012 Board Remand. See 05/21/2012 VA Examination; see also 02/27/2012 BVA Decision at 1011 ("[t]he examiner should take as conclusive fact that the Veteran had a pre-existing lumbar spine disorder ..." and "[t]he examiner should then state whether any lumbar spine disorder found more likely, less likely or at least as likely as not ... was aggravated (permanently worsened beyond the natural progression of the disease) during military service, to include the documented lifting injury in July 1980."). Here, however, the May 2012 examiner opined on entitlement to secondary service connection only, not aggravation of a pre-existing condition. See 05/21/2012 VA Examination at 13. Further, the examiner failed to show adequate consideration of relevant evidence, to include the service treatment records (STRs) showing a July 1980 lifting injury, as directed by the Board Remand. Finally, the May 2012 examiner also failed to reconcile the Veteran's lay reports of symptoms and treatment history with the objective medical evidence of record. See, e.g., 08/09/2011 Board Hearing Transcript; 04/28/2008 and 05/03/2012 Private Medical Treatment Records; 04/03/2008 and 08/14/2008 VA 21-4138 Statement in Support of Claim. For background, in its February 2012 remand, the Board found that the Veteran's lumbar spine disorder pre-existed service. It stated that the Board was bound by the service department's finding in the July 1980 DA Form 2173 that the Veteran's lumbar spine injury at that time was "not incurred in the line of duty" because of a previous motor vehicle accident in February 1980. The Board then noted that the presumption of soundness does not apply if an entrance examination was not performed prior to that period of service. Moreover, the presumption of aggravation is not applicable, to a period of ACDU'TRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Thus, it is found that the Veteran had a pre-existing lumbar spine disorder as a result of the accident prior to the period of July 1980 ACDUTRA or INACDUTRA. The DA Form 2173 establishes that the July 1980 lumbar spine injury did occur, raising the inquiry of whether in-service aggravation can be found. Cf. Hill v. McDonald, 28 Vet. App. 243, 252 (2016) ("[O]nce a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA."). The record does not reflect that service connection has been established for any disability. To show aggravation, a claimant who served only on ACDUTRA has the burden to demonstrate that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during his period of ACDUTRA. See Donellan v. Shinseki, 24 Vet. App. 167, 174 (2010); see also Smith v. Shinseki, 24 Vet. App. 40, 48 (2010) (stating that for claims based on aggravation of a pre-existing condition during a period of ACDUTRA or INACDUTRA, the appellant must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training). The Court has held that a medical examination report must not contain only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Accordingly, the Board will not proceed with final adjudication of this claim until a competent medical opinion with supporting rationale is obtained that adequately addresses the nature of the Veteran's current lumbar spine disorder and whether such condition is linked to his active military service, to include whether a pre-existing lumbar spine disorder was aggravated by service, to include service in the Army National Guard. Therefore, on remand, the AOJ should obtain a medical opinion that adequately addresses the nature and etiology of the Veteran's lumbar spine disorder and shows adequate consideration of the evidence of record. This matter is REMANDED for the following actions: 1. Contact the NPRC via the Personnel Information Exchange System (PIES) and request a search for the Veteran's in-patient clinical records pertaining to treatment for a lumbar spine disorder at the Baynes-Jones Army Community Hospital in Fork Pork, Louisiana in July 1980. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R.§ 3.159(c)(2). Notify the Veteran if the records cannot be located. 2. Contact the Veteran and ask him to identify and/or provide authorizations for VA to obtain and associate with the record any outstanding VA or private treatment records related to his lumbar spine disorder. Specifically, obtain all outstanding in-patient clinical records pertaining to the Veteran's lumbar spine disorder from the Rapides Regional Medical Center in Alexandria, Louisiana. In this regard, provide the Veteran the opportunity to complete and return VA Forms 21-4142 and 21-4142a and inform him that he must complete and return both forms to VA in their entirety. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R.§ 3.159(c)(2). Notify the Veteran if the records cannot be located. 3. After the development requested above in Directives #1 and #2 have been completed, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of his lumbar spine disorder. The entire claims file, to include a copy of this Board Remand and January 2021 JMPR, should be reviewed in conjunction with the examination. If the clinician determines that an in-person examination is necessary to respond to this request, then a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) should be so scheduled. Based on a review of the evidence, the clinician must provide an opinion on: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disorder is related to his active service, to include whether the evidence shows that a pre-existing lumbar spine disorder was aggravated (permanently worsened beyond the natural progression of the disease) during military service by his training, to include the documented lifting injury in July 1980. See 06/28/2000 STR Medical. (b.) If aggravation is found, the clinician should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's lay reports as to the nature, severity, and frequency of his observable symptoms over time. In addressing the above, the examiner should accept as conclusive fact that the Veteran had a pre-existing lumbar spine disorder prior to his by service in the Army National Guard, to include periods of inactive duty for training (INACDUTRA) and ACDUTRA from May 1979 to September 1982 in the Army National Guard. See 05/12/2000 Military Personnel Record at 7. A comprehensive rationale for all opinions is to be provided. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Tremont 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.