Citation Nr: 22016525 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-53 411 DATE: March 22, 2022 REMANDED Entitlement to service connection for an upper back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to July 1992. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board reopened and granted entitlement to service connection for migraine headaches. It also remanded the issue on appeal for further development. Entitlement to service connection for an upper back disability The Veteran was afforded a VA examination in June 2017. The examiner diagnosed the Veteran with thoracolumbar spine strain and opined that this disability was less likely than not incurred in or caused by the Veteran's service, to include a 1991 assault. The examiner reasoned that, while the service treatment records did show an incident of assault in 1991, there was insufficient evidence that the Veteran's upper back was directly affected as there was no objective evidence that supported or confirmed a diagnosis of an upper back condition. The Board finds that the June 2017 opinion is inadequate as it disregards the Veteran's lay statements regarding the onset of his upper back pain merely because they are unaccompanied by contemporaneous medical evidence. The examiner acknowledged that the service treatment record did support the Veteran's report of an assault in service. However, he dismissed the Veteran's lay statement that he has experienced upper back pain since that assault because there were no objective findings or diagnosis to accompany that report. The examiner therefore appears to have dismiss the Veteran's lay statements regarding the onset, severity, and history of his upper back pain solely because they were unaccompanied by contemporaneous medical evidence proving the existence of this pain during service. Such an opinion is inadequate and remand for a new opinion is necessary. See Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). The Board also notes that the December 2019 Board directives instructed the RO to attempt to obtain the Veteran's private treatment records. The RO sent the Veteran a request with the appropriate authorization forms in December 2019. The record does not contain any response from the Veteran. The Board notes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991). While VA does have a duty to assist the Veteran in the development of the claim, that duty is not limitless, and the Veteran must be prepared to cooperate with VA's efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, as the issue on appeal is already being remanded, the Board will afford the Veteran an additional opportunity to provide the required releases so that there is a complete record upon which to decide the Veteran's claim and he is afforded every possible consideration. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current upper back disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The examination report should note a review of the file was conducted. For any current upper back disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.