Citation Nr: 21041996 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-04 137 DATE: July 10, 2021 REMANDED Entitlement to service connection for a lower back condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1968 to May 1974, and in the United Stated Navy from August 1983 to July 1985. Though this matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office, it was originally denied in a February 1990 rating decision. In a January 2019 decision, the Board found that new and material evidence had been received sufficient to warrant reopening of the claim and remanded the matter for additional development. Entitlement to service connection for a lower back condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the January 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in January 2019, the Board instructed the AOJ to provide the Veteran with a VA examination to determine the nature and etiology of his claimed lower back condition. As part of this examination, the examiner was instructed to address private medical opinions from September 2013. The Veteran was afforded a VA examination and an etiological opinion was provided in December 2019. However, the examiner did not address the September 2013 private medical opinions. See December 2019 VA Back Conditions Disability Benefits Questionnaire (DBQ); December 2019 VA Medical Opinion DBQ. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to allow the AOJ to afford the Veteran with an examination that substantially complies with the Board's directives. See Stegall v. West, supra. Even if the Board could find substantial compliance with the January 2019 remand directives, a remand would be warranted nonetheless to allow the AOJ to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran has received treatment for his lower back condition at University of Cincinnati Health Orthopaedics and Sports Medicine (UC Health). See June 2013 VA Form 21-4142; UC Health records, received September 2013. However, there is no indication that such records have been requested, and only a two-page excerpt of such records have been associated with the claims file. See UC Health records. Additionally, the Veteran's VA treatment records note that he has received private chiropractic care from Dr. L. Jahnke through the Veterans Choice program. See Cincinnati VA Medical Center (VAMC) records, received January 2012, August 2016, October 2016, December 2018, December 2019, and April 2021 in CAPRI. However, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. As such, a remand is necessary to allow the AOJ to obtain pertinent private medical records. See 38 U.S.C. § 5103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of the Veteran's claimed lower back condition. As discussed above, in December 2019, the Veteran was afforded a VA examination regarding his claimed lower back condition. See December 2019 VA Back Conditions DBQ; December 2019 VA Medical Opinion DBQ. However, potentially pertinent private medical records have not been associated with the claims file. As such, even if the Board could find substantial compliance with the January 2019 remand directives, the December 2019 examination and etiological opinion are inadequate to the extent the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Therefore, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed lower back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment at UC Health and chiropractic care from Dr. L. Jahnke, as well as records relating to treatment at Cincinnati VAMC from April 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician regarding the nature and etiology of his claimed lower back condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and post-service employment. (b.) For each diagnosed lower back condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinion, the examiner is instructed to consider and specifically address: i. The Veteran's lay history; ii. The Veteran's in-service report of back pain radiating to right leg in January 1984 and treatment for a fractured left acetabulum sustained when he fell through a hole in a pier; and iii. The September 2013 private treatment records opining that the Veteran's left stenosis with radiculopathy was a progression was a continuation of a prior problem that developed during service. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means 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 the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service documentation of a condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.