Citation Nr: 21032107 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-09 361 DATE: May 25, 2021 REMANDED Entitlement to service connection for lumbar spine disability, to include degenerative disc disease and muscle strain, is remanded. Entitlement to service connection for schizophrenia is remanded. REASONS FOR REMAND The Veteran, who is the appellant, served on active duty from May 1982 to November 1982, and from July 1987 to November 1987. He also served in the Army Reserve and Army National Guard, with numerous periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from 1984 to 2002. These matters were previously remanded by the Board of Veterans' Appeals (Board) for additional development in August 2015, December 2016, June 2018, and April 2020. Unfortunately, remand is required for additional development. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. There has not been substantial compliance with the Board's previous remand directives to request the complete service personnel and treatment records of the Veteran's Army Reserve and National Guard service. Despite at least eight periods of active duty for training, only two examinations could be obtained from the Veteran's service. Additionally, the evidence used to determine the in-service diagnoses of schizophrenia and social anxiety disorders were not obtained. Although the record shows numerous attempts to obtain the Veteran's service treatment records, a request was not sent to the Army Human Resources Command. As a May 2005 negative records request from the National Personnel Records Center directed inquiry to the Army Human Resources Command, but no response has been obtained, another remand is required to request the Veteran's records from the Army Human Resources Command. Stegall at 271. The RO was instructed to procure these records in the April 2020 Board decision, and in the event the records could not be located, the RO was instructed to provide a formal finding which outlined the efforts taken to locate these records. Neither the records nor a formal finding determining that the records could not be located were associated with the file; as such, remand is required for compliance with prior Board remand directives. On remand, an addendum medical opinion regarding the claimed schizophrenia should be procured if additional service medical records are located and associated with the claims file. Additionally, the RO did not verify the types of service that the Veteran performed as requested by the Board in April 2020. There is no indication of whether any period of time that the Veteran was in the National Guard or Reserves was a period of active duty, ACDUTRA, or INACDUTRA. The record as to the Veteran's specific types of service and the specific dates of that service during the period is still ambiguous. Thus, the Board finds that there was not substantial compliance with that remand directive from the April 2020 Board decision concerning the dates and types of the Veteran's service. See Stegall, supra. Finally, the Board also notes that the October 2020 and February 2021 VA opinions regarding the Veterans back condition are inadequate. In the April 2020 Board remand, the examiner was instructed to consider the Veteran's periods of ACDUTRA and INACDUTRA from 1984 to 2002 in providing his opinion, including the Veteran's ACDUTRA periods from June 23, 1996 to July 7,1996; from July 13, 1997 to July 27, 1997; from January 24, 1998 to February 7, 1998; from February 18, 1999 to February 21, 1999; from April 15, 1999 to April 18, 1999; and from May 12, 1999 to May 16, 1999. The examiners in the October 2020 and February 2021 opinions only addressed the Veteran's period of active duty service in 1987. As such, remand is required for an adequate opinion that complies with all prior Board remand directives. [CONTINUED ON NEXT PAGE] The matters are REMANDED for the following action: 1. Request the Veteran's Army Reserve (from August 1984 to April 1987, and from November 1989 to January 1995) and Army National Guard (from January 1987 to November 1989, and from January 1995 to March 2002) records from the Army Human Resources Command. If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a Formal Finding should be entered into the record outlining the development taken and the Veteran should be notified and provided the opportunity to obtain and submit the evidence. 2. Certify the nature of the Veteran's periods of service. As to each period, state definitively whether it was Federalized service, and, if so, whether it was active duty, ACDUTRA, or INACDUTRA. 3. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist to address the nature and etiology of his lumbar spine disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's lumbar spine disability was incurred during or caused by active service, to include on the basis of the types and circumstances of the Veteran's service as shown by service records, their medical records, and all pertinent lay evidence. The examiner must specifically address whether it is at least as likely as not that the lumbar spine disability was incurred during or caused by the numerous periods of ACDUTRA and INACDUTRA performed by the Veteran from 1984 to 2002, to include periods of ACDUTRA from June 23, 1996 to July 7, 1996; from July 13, 1997 to July 27, 1997; from January 24, 1998 to February 7, 1998; from February 18, 1999 to February 21, 1999; from April 15, 1999 to April 18, 1999; and from May 12, 1999 to May 16, 1999, which included the Veteran's completion of the Infantryman Course and temporary duty in the Dominican Republic with an infantry battalion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. If additional service treatment/personnel records are located, obtain an addendum medical opinion from any qualified VA examiner as to the etiology of the Veteran's schizophrenia. The examiner is asked to opine, and provide a complete rationale, on the following: (a.) The examiner must opine whether the schizophrenia clearly and unmistakably (undebatable) preexisted the Veteran's service. The opinion should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of schizophrenia or residuals thereof. (b.) If the examiner finds the schizophrenia did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. The examiner must consider the finding of the Puerto Rico National Guard Medical Fitness Board that the Veteran's diagnoses of paranoid schizophrenia and social anxiety disorders render him unfit for continued service, and specifically discuss whether that finding indicates a permanent worsening (i.e., aggravation) of a preexisting disability after service consisting of over seven years in the Army Reserves, over seven years in the Army National Guard, and over eight months of ACDUTRA. (c.) If the examiner finds that the schizophrenia either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's reports of mistreatment and harassment by his unit members. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. T. SHERRARD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.