Citation Nr: 21040852 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-18 622 DATE: July 7, 2021 REMANDED Entitlement to service connection for a back disability, to include as secondary to a service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1987 to April 1987 and December 1990 to May 1991. He appeals a January 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for a back disability. In July 2018 and February 2021, the Board remanded the Veteran's claim to the AOJ for further development. The claim is back before the Board for further appellate proceedings. Following the July 2018 Board remand to in part obtain a VA examination and opinion as to the etiology of the Veteran's back disability, the Veteran attended a VA examination in September 2020 for an evaluation his back. The examiner opined that the Veteran's back condition was less likely than not incurred or caused by his service. See September 2020 VA opinion. The examiner reasoned that there was no significant low back injury noted during the Veteran's service. However, the Veteran has contended that he injured his back during a training exercise. See February 2014 Notice of Disagreement; see also April 2018 Informal Hearing Presentation. As the September 2020 VA opinion and rationale does not reflect consideration of the Veteran's contention that he injured his back during a training exercise, an additional VA opinion is necessary. In addition, pursuant to the February 2021 Board remand, the AOJ sent the Veteran VA Forms 21-4142 and 21-4142a in order to develop the record and obtain private treatment records. See February 2021 Subsequent Development Letter. However, this appears to be the only attempt by the AOJ to obtain the Veteran's records. The February 2021 remand instructed the AOJ to make as many requests a necessary to obtain the Veteran's records until it made a formal determination that the records either do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159. As a proper formal finding was not made, the issue on appeal must be remanded to ensure compliance with those orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The matter is REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, including from the private chiropractor identified in the September 12, 2013 VA treatment record, obtain all records of the Veteran's treatment for his back disability claim. If the Veteran does not return the VA Form 21-4142 for the records from the private chiropractor, make a formal finding in the record to that effect. If the Veteran returns the VA Form 21-4142 for records from the private chiropractor, or for records from any other private source and the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Obtain any outstanding VA treatment records relevant to treatment received for his back disability that are not already of record. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development above, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's back disability. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's back disability (diagnosed as degenerative joint disease/osteoarthritis of the lumbar spine at L2-L3), was incurred in, or is otherwise related to, his time on active service. B. Is it at least as likely as not that the Veteran's back disability was caused or aggravated by his service-connected left knee disability? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the 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. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.