Citation Nr: 21040295
Decision Date: 07/03/21	Archive Date: 07/03/21

DOCKET NO. 17-01 506
DATE: July 3, 2021

REMANDED

Entitlement to service connection for a back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1979 to November 1979, October 1980 to October 1984, and November 1985 to July 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

Although the Veteran initially asked for a hearing before the Board, he withdrew his request in January 2021. His hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704.

1. Entitlement to service connection for a back disability is remanded.

In June 2016, the Veteran underwent a back examination. There, the examiner opined that the Veteran's back disability was less likely than not related to his military service. After the examination, the Veteran submitted additional private medical records. Because VA received this evidence after the examiner rendered his opinion, he could not have considered it. And it potentially undercuts his rationale. For instance, the examiner relied, at least in part, on the "[25-year] gap in private medical records regarding treatment of his lumbar spine." However, the Veteran's newly added private medical records show that his private healthcare provider diagnosed him with a lumbar strain after he complained of lower back discomfort in December 2004. This shortens the gap by 7-8 years. As such, remand is warranted to obtain an addendum medical opinion that considers the relevant and potentially favorable medical evidence of record.

Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir 2020).

The matter is REMANDED for the following action:

1. Obtain all outstanding VA treatment records and associate them with the claims file.

2. Then, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that his back disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service.

In answering that question, the examiner must address the Veteran's contention from the August 2016 Notice of Disagreement ("NOD") that he pinched a nerve in his back during service and that developed into his current disability.

If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

 

 

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Canedy, 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.