Citation Nr: 22012686 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-28 813 DATE: March 4, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from January 1969 to January 1971, to include service in Vietnam. Among other commendations, he received a Vietnam Service Medal, Vietnam Campaign Medal, and a Bronze Star. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in February 2019, June 2020, and October 2021 for additional evidentiary development. Specifically, the Board found previous medical opinions of record inadequate. 1. Entitlement to service connection for a back disability is remanded. The Board sincerely regrets the additional delay, but remand is again necessary in order to ensure compliance with prior remand directives, as well as afford due consideration to the Veteran's lay statements pertaining to his injury. The Veteran has present diagnoses of scoliosis, degenerative joint disease, degenerative disc disease, degenerative arthritis, spinal stenosis, intervertebral disc syndrome, and osteoporosis. He believes these conditions are related to his service in Vietnam. He also asserts that a treating clinician informed him that he had a diagnosis of scoliosis prior to his induction to service that was not detected upon his entrance or separation examinations, and the condition was worsened by his active duty service. The Veteran reports that he served in South Vietnam and frequently jumped out of helicopters and rappelled down towers during this time. He relayed that he first experienced problems with his back while serving in Vietnam. His back began to hurt during routine missions. Pain continued "on and off" throughout the remainder of his service. He believes he received an inadequate induction examination, and he reported declining additional examination at separation so he could return home as expeditiously as possible. The Veteran stated that a clinician advised him to seek further treatment for his back at separation, but he did not follow through. The Veteran also submitted lay statements from a fellow service member, his wife, and old friends regarding observable symptomatology associated with his claimed back disability. By way of example, a friend who knew the Veteran before and after service remarked that he exhibited an "off balance appearance regarding his posture" within the first year after returning from Vietnam. These symptoms progressed and worsened over time. The Veteran's wife shared that the Veteran told her of an incident wherein he fell during a helicopter jump and landed on his back, causing him to lose his breath. The Veteran also provided photographs of him purportedly in Vietnam that reflect his shoulders at different heights. While lay people generally may not be competent to provide etiological issues on disabilities, they are competent to report readily observable symptoms associated with a disability. Following prior inadequate medical opinions, the Board remanded this issue again in October 2021 with explicit instructions regarding the consideration of the lay statements of record as they pertain to the Veteran's scoliosis, as well as his multiple other present back disabilities. Unfortunately, the December 2021 VA examiner failed to adequately consider and address these statements pursuant to the remand instructions. Thus, this latest medical opinion is inadequate for adjudicative purposes, and remand is again necessary in order to obtain an adequate medical opinion that substantially satisfies prior remand instructions and appropriately considers lay evidence of record. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal, to include any from treating clinicians regarding the claimed preexisting scoliosis issue. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 3. Following completion of the foregoing, obtain an addendum opinion from a specialist, and not a previous examiner, on the etiology of the Veteran's back disability. An examination may be scheduled if deemed necessary. The Board notes that if the requested specialist is not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. A complete copy of the claims file must be made available to the specialist, including a copy of this remand. The specialist must consider the Veteran's lay statements regarding his back disabilities, as well as those of friends and family, as outlined in the body of this remand. Following a thorough review of the medical and lay evidence of record, the specialist should opine as to the following: (a.) Identify any and all present disabilities of the back throughout the period on appeal. (b.) With respect to scoliosis, the examiner should explain whether it is a congenital or developmental disease, a congenital or developmental defect, or a disorder not of congenital or developmental origin. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (c.) If scoliosis is determined to be a congenital defect, please provide an opinion as to whether itis at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (d.) If scoliosis is determined to be a congenital or developmental disease, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the scoliosis was aggravated (permanently worsened beyond the normal progress of the disease) by the Veteran's active service. The examiner must address the Veteran's lay statements regarding his scoliosis. Specifically, the Veteran contends that his scoliosis diagnosis was missed on his entrance examination. He also reports that, upon return from Vietnam, he underwent a back examination due to his scoliosis, but declined further testing for a disability claim due to his desire to return home expeditiously. See October 2020 lay statements. (e.) For all other identified back disabilities, is it at least as likely as not (50 percent or greater probability) that the identified disability was incurred in or otherwise related to service, to include service in Vietnam? (f.) If not, is it at least as likely as not (50 percent or greater probability that the Veteran's back disability was caused or aggravated by his service-connected disabilities? The examiner must address the lay statements of record regarding the Veteran's back disability and observable symptoms reported during and after service, as well as the in-service photographs provided by the Veteran. 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 his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. (Continued on the next page) 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and the representative of record an opportunity to respond, and return the case to the Board. Hannah Fisher Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.