Citation Nr: 22015972 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 17-58 460 DATE: March 20, 2022 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from August 1966 to August 1968, and on active duty for training in August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from the September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2018 and November 2020, the Board remanded the Veteran's claim for additional development. In May 2021, the Board issued a decision denying the Veteran's service connection claim currently on appeal. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (CAVC), resulting in the November 2021 Joint Motion for Remand (JMR). In a November 2021 Order, CAVC granted the JMR, thereby partially vacating the May 2021 Board decision, and remanded the issue for readjudication consistent with the JMR. Regrettably, the Board finds that a remand is necessary prior to readjudication of the claim. A review of the record reveals that in March 2015, the Veteran submitted a VA form 21-4142 Authorization for Release of Medical Information allowing VA to obtain private treatment records from Presbyterian Hospital in support of his lumbar spine disorder claim. VA acknowledged receipt of this authorization form in May 2015. Subsequently, in May 2015, VA reported that two personnel from the medical records department at Presbyterian Hospital noted that they were unable to locate the Veteran as a patient in their system, and therefore, no records had been found. See VA 21-0820, May 2015. In November 2017, a Statement of the Case was issued that noted the medical records were not received for review, however, the file fails to reflect that the Veteran, himself, was sent proper notice that his private treatment records were unable to be obtained. Nevertheless, since then, the Board notes that the Veteran has asserted that he has continued treatment with Presbyterian Hospital. While efforts have been made to obtain such records prior to May 2015, which have resulted in no records being found, the Board notes that, based on the Veteran's assertion of continued care, another attempt to obtain such records from Presbyterian Hospital must be made prior to May 2015 and thereafter, in accordance with VA's duty to assist and prior to readjudication of the claim. If these records are still unavailable, then VA must state so and issue the Veteran proper notification that such records could not be obtained. Additionally, the Board notes that the June 2020 Supplemental Statement of the Case lists VA medical treatment records from Dallas were reviewed from "February 29, 2000, through June 2, 2020." A review of the claims file, however, does not reflect that such records prior to June 2001 are associated for review. Therefore, VA should attempt to obtain such records for review, in accordance with VA's duty to assist and prior to readjudication of the claim. If these records are unavailable for review, VA must state so and issue the Veteran proper notification that such records could not be obtained. Lastly, the Veteran was provided a VA medical opinion in December 2020 to determine the current nature and etiology of his claimed condition. Upon review, the examiner provided an unfavorable nexus opinion as to the Veteran's lumbar spine disorder being related to his active duty service. Nevertheless, the Board finds this opinion to be inadequate, as the examiner improperly relied, in part, on the lack of objective evidence in-service of complaints, treatment, or diagnosis of the claimed condition. Moreover, as the November 2021 JMR notes, the examiner partially rationalized that there is no medical evidence of a back condition until 2001, however, failed to address the September 2016 VA treatment record that noted the Veteran had been complaining of low back pain intermittently since 1969. Therefore, the Board finds that an addendum VA medical opinion is required to adequately address the Veteran's claim, prior to readjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his lumbar spine disorder and obtain any outstanding records and associate them with the Veteran's claims file, to include private treatment records from Presbyterian Hospital and VA treatment records prior to June 2001. Please note: if such records cannot be obtained, VA should state so and send the proper requisite notice to the Veteran that such records are unavailable and upload all correspondences to the claims file. 2. After associating all newly acquired records with the claims file, provide the Veteran with an addendum VA medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran's lumbar spine disorder. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed lumbar spine disorder had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service fall in August 1969 and/or by conducting basic soldiering tasks such as the carrying of heavy rucksacks or similar physical activity as may be suggested by the treatment for back pain in 1966 and 1967. Please note: the examiner must discuss the Veteran's assertion of experiencing low back pain intermittently since 1969. (b) Any opinion should include a detailed rationale. The examiner should consider the entire claims file and discuss the Veteran's lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that he is reports must be considered in formulating the requested opinion. (Continued on the next page) (c) If the examiner(s) is unable to offer the requested opinion(s), it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.