Citation Nr: 22015394 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 14-05 032 DATE: March 17, 2022 REMANDED Service connection for a back condition is remanded. Service connection for a neck condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1967 to May 1969, and in the Army National Guard from September 1990 to May 1991. The matter is on appeal before the Board from a February 2012 rating decision. The Veteran provided testimony at an October 2014 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded the issues for further development in July 2016 and September 2020. In March 2021, the Board denied the Veteran service connection for both a back condition and a neck condition. The Veteran appealed the March 2021 Board decision to the United States Court of Appeals for Veterans Claims, and in November 2021 a Joint Motion for Partial Remand (JMPR) was rendered. This decision is written in accordance with the findings from the November 2021 JMPR. 1. Service Connection Back and Neck conditions In the November 2021 JMPR, the March 2021 Board decision was vacated in part, to the extent that it denied service connection for a back condition and a neck condition. The Veteran did not appeal the Board's denial of service connection for a bilateral knee condition. In September 2020, the Board had remanded the issues to obtain a VA medical opinion to determine the etiology of the Veteran's back and neck conditions. The Board had instructed the VA examiner to address whether it was at least as likely as not that the Veteran's current back and neck disabilities began during service, or were otherwise caused by service, and to explain why or why not. Additional instructions were also provided in the Board's directives pertaining to pertinent evidence the examiner was to review and discuss within the opinion. The parties to the JMPR agreed that the September 2020 VA addendum medical opinion did not comply with the Board's remand instructions because the examiner did not provide an adequate explanation for his opinion, as was required by the Board's remand directives. That is, the examiner did not adequately answer why or why not. Rather, the VA examiner indicated that he was "unable to state" whether the Veteran's back disability was related to service, and did not provide an explanation as to why or why not. The examiner also opined that he was "unable to state" whether the Veteran's neck condition was related to service due to a lack of documentation of a neck condition in the Veteran's records without any further explanation of why or why not. As was noted in the JMPR, a lack of records is not appropriate for a rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Thus, the Board was instructed to obtain new medical opinions that comply with the detailed instructions that were provided by the Board in the September 2020 Board remand. As such, the issues of service connection for both a back condition and a neck condition are remanded to obtain VA medical opinions that are in compliance with the September 2020 Board remand directives. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion pertaining to the etiology of the Veteran's back condition. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current back disability either began during or was otherwise caused by his military service (June 1967 to May 1969 and September 1990 to May 1991)? Why or why not? For further clarity, the VA examiner should first review the November 2021 JMPR. In providing the opinion, the VA examiner should review and discuss the relevance, if any, of the examinations in the Veteran's STRs from October 1966, November 1986, and October 1990 where the Veteran checked recurrent back pain, and the notation from June 1967 where the Veteran complained of back trouble. The records from the August 1994 Gulf War Registry examination should also be taken into consideration and discussed (these may be found in a record dated 1/20/2017), as well as the lay statements submitted by fellow Veterans in February 2009. 2. Obtain a VA addendum medical opinion pertaining to the etiology of the Veteran's neck condition. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current neck disability either began during or was otherwise caused by his military service (June 1967 to May 1969 and September 1990 to May 1991)? Why or why not? For further clarity, the VA examiner should first review the November 2021 JMPR. In providing the opinion, the VA examiner should review and discuss the records from the August 1994 Gulf War Registry examination (these may be found in a record dated 1/20/2017), as well as the lay statements submitted by fellow Veterans in February 2009. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.