Citation Nr: 22014856 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-43 652 DATE: March 15, 2022 REMANDED Entitlement to service connection for moderate degenerative disc disease and facet arthropathy at L5-S1 with lumbar strain (hereinafter lumbar spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 Department of Veterans Affairs (VA) rating decision that determined that new and material evidence had not been received since a prior July 2014 rating decision. On his August 2017 VA Form 9, substantive appeal, he requested a Board hearing. In September 2021, he withdrew the hearing request. Later, in September 2021, a Board decision determined that the July 2014 rating decision did not become final because new and material evidence was constructively received by VA within one year of that decision. The Board proceeded to adjudicate on the merits and remanded the issue of entitlement to service connection for a low back disability. While the Board regrets the delay involved in remanding this case again, it is also of the opinion that further development of the record is required to comply with VA's duty to assist the appellant in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159. Specifically, in the September 2021 remand, the Board requested private medical treatment records, which were scanned into VISTA, to be associated with the claims file. However, a review of the file shows that those records were not obtained and associated with the claims file. Accordingly, another remand is warranted to associate the private medical treatment records with the claims file, consistent with the directives herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following actions: 1. The Veteran's VA treatment records show that in February 2010, MRI and other radiology records were scanned into VISTA Imaging. In February 2015, outside neurology reports were also scanned into VISTA Imaging. Copies of these private treatment records should be obtained from VISTA and associated with the claims file. If these records are no longer available, efforts to obtain them must be documented in accordance with 38 C.F.R. § 3.159(c)(2). 2. Contact the Veteran and ask that he identify the providers of treatment or evaluation he has received for his lumbar spine disability, and to provide any releases necessary for VA to secure such records of treatment or evaluation. Obtain complete records of all such treatment or evaluation from all sources identified by the Veteran. 3. After the above records requests have been completed, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lumbar spine disability is at least as likely as not related to a back injury in service. The examiner must review the claims file, including this remand. An examination need only be performed if deemed necessary by the examiner. The examiner is asked to provide a response to the following, with consideration of the Veteran's lay statements regarding continuous symptoms since service: (a) Is the low back disability at least as likely as not related to events in service, including a claimed fall from a catwalk aboard ship? Service treatment records show treatment for complaints of low back pain after lifting a box in May 1969, complaints of upper back pain in October 1970, and an incident in December 1970 in which he complained of pain in his feet, and said he was injured upon jumping from a platform. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. 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 disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (b) Is it at least as likely as not that arthritis of the lumbar spine (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.