Citation Nr: 21029699 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-04 215 DATE: May 14, 2021 REMANDED Service connection for a back disability, to include herniated disc and back strain, is remanded. Service connection for a neck disability, to include degenerative disc disease, herniated disc, and cervical strain, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from September 1982 to April 1983, January 2007 to April 2007, and from June 2008 to July 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In May 2017, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). In a March 23, 2021, correspondence, the Board informed the Veteran that the VLJ who heard his case was no longer employed by the Board. The Veteran was offered the opportunity to request another hearing within thirty days from the date of the correspondence. The Veteran did not respond to that letter within thirty days as requested. By not responding, he declined a new hearing. The Board will adjudicate his appeal based on the evidence of record. See 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707 In July 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain new VA examinations and medical opinions for each of the claimed disabilities, which the VA Regional Office accomplished. The case now returns to the Board. Unfortunately, the Board finds remand is required to obtain addendum opinions for each claimed disability. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for a back disability, to include herniated disc and back strain, is remanded. 2. Service connection for a neck disability, to include degenerative disc disease, herniated disc, and cervical strain, is remanded. As part of the Board's July 2020 remand, it specifically informed the examiner that the lack of contemporaneous medical records, alone, does not render the Veteran's lay statements not credible. Yet, for each of the claimed disabilities, the examiner provided a negative nexus opinion based on the following reasoning: "unable to establish a link to service for the diagnosed neck [and back] disabilities, as there is no objective evidence of continuous care and treatment in service up to the date of diagnosis." The examiner's sole focus on care/treatment for each disability was not appropriate. The focus should be on the symptoms of the Veteran's back and neck disabilities, both documented and asserted in the lay and medical evidence, in addition to objective medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, while the examiner recited factual evidence of record, she did not explain how the evidence was relevant to each opinion. This renders the opinions deficient. Howell v. Nicholson, 19 Vet. App. 535 (2006) (holding a medical report may be rejected as incompetent medical evidence when it is simply the recorded information of the claimant "unenhanced by any additional medical comment by [a] medical examiner."). Remand is necessary to obtain addendum opinions. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain addendum opinions from the September 2020 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's back disability and neck disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease while on active duty. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's neck disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease while on active duty. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) An October 23, 2008, sworn statement from the Veteran that he suffered a hematoma while lifting sandbags while serving in Iraq in October 2008. (b.) A May 8, 2009, post-deployment health assessment on return from Iraq in which the Veteran indicated having attended sick call for back pain and continued to suffer from back pain at the time of the health assessment. (c.) A May 31, 2009, medical record documenting treatment for intermittent right flank pain. (d.) A June 12, 2011, medical record from the New Jersey National Guard, Medical Command, documenting the Veteran's report of neck pain and low back pain. (e.) An April 29, 2012, neurology medical record from the New Jersey National Guard, Medical Hold Detachment, documenting the Veteran's report of neck and back pain for approximately five years. (f.) Generally, the Veteran's post-deployment medical records, including National Guard medical records, which recorded his reports of and treatment for neck pain and back pain. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disabilities, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner's focus should be on the symptoms of the Veteran's back and neck disabilities, both documented and asserted in the lay evidence, rather than on the lack of chronic care/treatment alone. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a back or neck disability in service or the assertion that an in-service event, injury, or illness led to a back or neck disability presently. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.