Citation Nr: 21042619 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-40 955 DATE: July 13, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2001 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran's appeal was previously before the Board in March 2019, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Entitlement to service connection for a back disability is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for a back disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2019, the Board noted that the August 2013 VA examiner misread the date stamp on several treatment records, leading to conclusions based on inaccurate factual premises. The Board directed that an addendum opinion must be obtained which considers this, and all, evidence in the correct context. In November 2019, a VA examiner opined that the Veteran's claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The medical opinion, however, did not mention or consider the evidence specifically noted by the Board that was previously viewed in an erroneous light. Further, additional evidence and arguments have since been associated with the claims file and is relevant to the claim. For example, in April 2020, the Veteran submitted a statement denying back problems prior to service. The Veteran reported back pain symptoms during service, a lack of adequate treatment and board-certified doctor physician care while deployed, and continuing symptoms ever since service. The Veteran also confirmed that a documented report of back problems was from 2005. The Veteran also reported private back treatment, which tends to undercut another part of the November 2019 VA medical opinion rationale that there was "no evidence of chronicity of care between 2003 and 2007, when veteran says his back pain was severe." These reasonably identified records must be obtained. In light of above, the Board concludes that another remand is necessary to obtain medical opinions which address all of the evidence of record in the appropriate light. The matter is REMANDED for the following actions: 1. Obtain updated VA and any outstanding private treatment records, with the Veteran's assistance regarding the latter. In April 2020, the Veteran reported receiving private back treatment from 2003 to 2007. If any identified records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate VA clinician to determine whether the Veteran's back disability is at least as likely as not caused or aggravated by active service. The clinician must note that the June 21st report of medical history, which documented no back problems, was completed prior to service (in 2000) and not post-service. The clinician must also note the explanation for recurrent back pain an undated report of medical history, which must be considered as having been completed after the Veteran's May 2003 return from Iraq. If the clinician determines that an examination is necessary, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his back disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The clinician must review the claims file, including a copy of this remand order, the service treatment records noted above, an October 2015 letter from a physical therapist, medical articles that the Veteran submitted in November 2015, and the Veteran's lay statements from through the period on appeal including most recently in April 2020. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the clinician should consider them a "disability" for the purpose of providing the requested opinion. Provide a rationale to support the opinion. If the clinician cannot provide an opinion without resorting to mere speculation, then the clinician must explain why. The clinician must explain whether for additional information is needed or that the limits of current medical knowledge have been exhausted. (Continued on the next page) In providing the requested opinion, the clinician must consider the Veteran's description of in-service injury and symptoms as well as post-service symptoms. In April 2020, the Veteran denied back problems prior to service. The Veteran reported back pain symptoms during service, a lack of adequate treatment and board-certified doctor physician care while deployed, and continuing symptoms since service. The Veteran also confirmed that a documented report of back problems was from 2005. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and representative a copy of the readjudication and an appropriate opportunity to respond. . SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.