Citation Nr: 21032085 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-31 379 DATE: May 25, 2021 REMANDED Entitlement to service connection for facet arthritis with lumbar strain, DDD, anterior subluxation, herniated nucleus pulposis and scars (low back) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was previously before the Board in December 2019 and February 2021, wherein the Board remanded the issue for additional development. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The December 2019 Board decision remanded the issue of entitlement to service connection for a low back disability so that the RO could verify the Veteran's periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) and to obtain Air Force National Guard treatment records. The Board also found that the October 2013 back examination was inadequate, and a new addendum opinion was required. A new VA examination was obtained in March 2020, but the February 2021 Board found that the medical opinion was again inadequate. The Board also found that the RO did not comply with the prior remand directives to obtain Air Force National Guard treatment records. Stegall v. West, 11 Vet. App. 268, 271 (1998). As an initial matter, the Board notes that the RO once again did not verify the Veteran's period of ACCUTRA and INACDTRA and did not request Air Force National Guard treatment records. Accordingly, the Board does not find substantial compliance with its December 2019 and February 2021 remand directives and must be remanded again for Stegall compliance. The February 2021 Board decision also remanded the issue as it found that the March 2020 VA examination was inadequate as the examiner did not fully consider all the Veteran's lay statements and assertions. The Board also found that the VA examiner relied on the absence of medical evidence during service and lack of treatment following service to provide a negative nexus opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). An addendum medical opinion was obtained in February 2021. The examiner essentially stated that he agreed with the previous examiner that it is less likely than not that any current back problems had its onset during service. He stated that not only are there no medical records of a precipitating injury, but an absence of any problems related to a back problem. The examiner agreed with the previous examiner that the low back condition is otherwise not related to service including his duties related to firefighter such as hauling hoses and five gallon drum and moving around 55 gallon drums of protein foam as the absence of and complaints at the time of such activities and the multiple annual physicals in which no back issues were identified make it less likely than not that any current back problems had its onset during service. He also agreed that the medical evidence shows that his injury occurred during civilian status contradicting the Veteran's claim otherwise. Regarding the 1976 injury where the Veteran fell off of a 5000 gallon foam trailer, he opined that the low back disability would have manifest much earlier in time and the multiple examinations from 1996 onward do not reveal a problem with the low back. The examiner also agreed with the previous examiner that there was no evidence of a back disability existing within one year of active duty as there was no medical evidence of a problem in 1996 or 2009. Here, the February 2021 VA examiner basically provided the same rationale as the March 2020 VA examiner in finding that the Veteran's low back condition was not related to service. As the February 2021 Board decision had determined that the March 2020 VA medical opinion was inadequate, the February 2021 VA medical opinion is also inadequate, as the VA examiner stated that he agreed with the previous examiner and used the same rationale as the previous VA examiner. Thus, both medical opinions from March 2020 and February 2021 did not consider the Veteran's lay statements and assertions and relied on the absence of medical evidence during service and lack of treatment following service. Consequently, given the deficiencies of the March 2020 and February 2021 medical opinions, the Board finds that another remand is necessary, in order to obtain an adequate addendum opinion. The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Verify the Veteran's period of ACDUTRA and INACDUTRA during the Veteran's National Guard service and undertake actions to obtain all associated Air Force National Guard treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Once the above has been completed, arrange for a VA addendum medical opinion by a VA examiner other than the previous examiners to address the claim for a low back condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Notwithstanding the absence of records of immediate treatment for a low back disability in service, is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a low back condition that: a) had an onset in service; b) is otherwise related to service; to include his duties related to a firefighter such as hauling hoses and five-gallon drums and moving around fifty-five-gallon drums of protein foam; or c) was caused or aggravated due to a disease or injury during a period of ACDUTRA or INACDUTRA service in the National Guard? d) Also, the examiner should address whether it is at least as likely as not that the in-service injury where the Veteran fell off a five-thousand-gallon foam trailer would subsequently result in his current low back disability. The examiner should obtain additional details about this accident from the Veteran if necessary. e) Additionally, if arthritis is diagnosed, the examiner should also opine whether it is at least as likely as not (50 percent probability or greater) arthritis of the low back was manifest to at least a compensable degree within one year of his discharge from active duty. If so, the examiner should comment on the nature of those manifestations. In providing the requested opinion, the examiner must consider and discuss the Veteran's competent lay evidence that he has had back trouble ever since service and his competent reports of the fall in service and duties related to his MOS of firefighter. The examiner should also consider the post-service incidents of back pain and the Veteran's surgery in November 2010. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.