Citation Nr: 22015036 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 15-44 506 DATE: March 16, 2022 REMANDED Service connection for a back or neck disability, to include nerve impingement, is remanded. Service connection for a bilateral shoulder disability, to include nerve impingement, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to January 1997. In November 2021, the Board of Veterans' Appeals (Board) remanded his claims to the agency of original jurisdiction (AOJ) for a fourth time. Review of the record shows there are relevant medical records that have not been associated with the Veteran's claims file. At his October 2018 Board hearing, the Veteran testified that he receives medical care, including neurological treatment, through TRICARE. The February 2021 VA Compensation & Pension (C&P) examination report includes excerpts of multiple neurology records from Brooke Army Medical Center (BAMC), a TRICARE facility, dating back to August 2013. The February 2021 C&P examiner indicated that these "DOD/TRICARE records were reviewed through[] remote data in CPRS [Computerized Patient Record System]." The Board concludes that the BAMC records referenced in the February 2021 C&P exam report are relevant records in the custody of a Federal department or agency. The Veteran has sufficiently identified these records, and VA has a duty to obtain them under 38 C.F.R. § 3.159(c)(2). However, the actual records are not part of the claims file. The only BAMC records on file were created in 2018 and submitted by the Veteran in 2019. Unlike the February 2021 examination, the subsequent C&P examinations were performed by VA contractors. There is no indication that these contractors had remote access to the BAMC neurology records discussed in the February 2021 exam report. In any event, the records are not part of the record before the Board. Remand to the AOJ is warranted so that the AOJ can attempt to obtain the outstanding BAMC treatment records. Additionally, remand for an adequate addendum medical opinion is warranted. The Board has repeatedly requested that the AOJ obtain a medical opinion that considers the Veteran's lay statements regarding the onset of his symptoms. The Veteran has reported that he had back, neck, and shoulder pain, stiffness and muscle spasms in service. He attributes these symptoms to in-service injuries from activities like lifting and carrying equipment and setting up tents on field assignments. In January 2022, a VA contractor reviewed the claims file and provided new medical opinions regarding the claimed neck, back, and shoulder disabilities. The January 2022 C&P examiner provided essentially the same opinion for all three disabilities. The examiner noted there is "no objective medical evidence ... to support or confirm a link" between the claimed disabilities and service, and there is "a lack of sufficient objective medical evidence ... to confirm or support a conclusion that a chronic [disability] manifested within one year of separation from active duty." The January 2022 C&P examiner stated that they reviewed the Veteran's statements about his subjective symptoms and treatment during and after service. The examiner concluded, however, that the Veteran "is not capable of diagnosing the medical condition related to those symptoms." The examiner also commented that the complaints during service "were subjective only and not confirmed in the claims file." The opinions include no other discussion or analysis of the Veteran's specific statements. Most importantly, the opinions do not address whether the types of in-service activities or injuries reported by the Veteran (e.g., from heavy lifting) could have caused his current disabilities, as he contends. Nor do the opinions provide any alternative explanation for his disabilities. The Board finds that the January 2022 C&P examiner, like the previous examiners, improperly relied on the absence of medical records corroborating an injury to conclude that there is no relationship between the Veteran's current disabilities and service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The January 2022 C&P examiner did not clearly consider and discuss the Veteran's lay statements, including his 2018 testimony and statements to previous examiners, as the Board instructed. Moreover, as explained above, the January 2022 opinions are not based on a review of all of the available medical records. The opinions are therefore inadequate. Another remand is necessary to ensure compliance with the Board's previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain all of the Veteran's outstanding treatment records from Brooke Army Medical Center and associate them with the claims file. Document all requests for information as well as all responses in the claims file. 2. Obtain addendum medical opinions on the nature and etiology of the Veteran's claimed back/neck and bilateral shoulder disabilities. After reviewing the claims file, including this remand, the examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck/back disability was incurred in or caused by service, to include heavy lifting and other physical activities described by the Veteran? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck/back disability became manifest within one year of separation from service? If so, what were the manifestations? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral shoulder disability was incurred in or caused by service, to include heavy lifting and other physical activities described by the Veteran? (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral shoulder disability became manifest within one year of separation from service? If so, what were the manifestations? In particular, the examiner must clearly consider and discuss the Veteran's lay statements about his subjective symptoms and treatment, during and after service, in the opinions. These include his 2018 testimony before the Board and statements made to the previous examiners. 3. Review the medical opinions above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 4. Readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.