Citation Nr: 21030559
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 16-40 805
DATE:  May 19, 2021

REMANDED

Entitlement to service connection for a low back disability, diagnosed as compression fractures, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Marine Corps from July 1966 to April 1970 and from September 1974 to November 1977. He died on December [REDACTED], 2015. The appellant is his surviving spouse; she is pursuing this appeal as a substituted claimant under the provisions of 38 U.S.C. § 5121A. See April 2016 VA letter to the appellant granting her substitution request. 

This matter originates from an October 2014 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2019 at which time the Board reopened the claim for service connection for a back disability and remanded the underlying merits of the claim to the Agency of Original Jurisdiction (AOJ) for additional development. The Board also remanded for further development the issue of entitlement to service connection for bilateral hearing loss. However, the AOJ subsequently granted service connection for bilateral hearing loss in August 2020. Thus, as this represents a full grant of the benefits sought on appeal, this issue is no longer on appeal. See AB v. Brown, 6 Vet. App. 35 (1993).

The facts of this appeal show that the Veteran was seen at a medical clinic in service in August 1967 for back pain that he said he noticed when he woke up. The treatment record contains a notation of a possible dislocated sacral vertebra. Findings revealed no area of tenderness or muscle spasm. The Veteran was assessed as having lumbar sprain and he was prescribed Parafon forte for five days. Post-service medical records show that the Veteran was diagnosed as having compression fractures in March 2011 and January 2013. 

In remanding this matter in August 2019, the Board requested that a medical examiner opine, after reviewing the Veteran's claims file, as to whether it is at least as likely as not that any low back disability shown in medical records, if any, was caused or aggravated by service, to include in-service complaints of back pain. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Thereafter, in January 2020, an examiner reviewed the Veteran's claims file and rendered a medical opinion. Unfortunately, the examiner did not rely on an accurate medical history when he rendered his opinion. In this regard, he did not consider the Veteran's inservice treatment for back pain in August 1967. Rather, he stated that there was "no competent medical evidence of complaints of back pain or treatment for the back while in the service or the year afterwards". Accordingly, this case must be remanded so that an addendum opinion can be obtained by the January 2020 examiner or another appropriate examiner that is based on an accurate medical history, to specifically include the Veteran's documented inservice back complaint in August 1967.

While the Board regrets the additional delay, another remand is necessary to make a fully informed decision in this matter and to ensure fulfillment of the appellant's due process rights. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159.

This matter is REMANDED for the following action:

1. Obtain an addendum opinion from the January 2020 examiner or another appropriate clinician regarding whether the Veteran's post-service diagnoses in March 2011 and January 2013 of compression fractures are at least as likely as not (a 50 percent degree of probability or higher) related to service, to specifically include consideration of the Veteran's inservice treatment for back complaints in August 1967. 

2. Confirm that the VA addendum report comports with this remand and undertake any other development found to be warranted.

3. Then, readjudicate the issue on appeal. If the decision is averse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response.

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Shawkey, Anne M.

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.