Citation Nr: 23023992 Decision Date: 04/26/23 Archive Date: 04/26/23 DOCKET NO. 17-16 793A DATE: April 26, 2023 REMANDED 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1978 to February 1982, and in the United States Army from June 1986 to October 1992. The Veteran also appears to have additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran and his wife testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In February 2023, the Veteran was sent a letter advising him that he could request another hearing before a different VLJ within 30 days. No response from the Veteran has been received and, therefore, there is no hearing request pending at this time. In December 2020, the Board remanded the within issues in order to obtain outstanding service treatment records, to send the Veteran a VA Form 21-4142 in order to obtain any outstanding private treatment records, and to have the Veteran undergo VA examinations for assessment of his back and shoulder disabilities. The Board noted that the record does not contain all of the Veteran's service treatment records from both periods of active duty in the Navy and the Army. Thereafter, the Veteran underwent the relevant VA examinations and was sent a VA Form 21-4142 seeking information relating to private treatment record. While attempts were made to obtain outstanding service treatment records directed to the National Personnel Records Center (NPRC), but relevant records are still absent from the record. The record does not demonstrate that attempts to obtain the Veteran's outstanding service treatment records have been directed to all potential locations of the records being sought, such as the Records Management Center (RMC) and the State Adjutant General's office. Thus, VA has not fulfilled its duty to assist the Veteran in the development of his claims. Additionally, the Board notes that, the regional office (RO) found that acquiring addendum opinions was necessary in order to comply with the Board's December 2020 remand directives. In June 2021, the RO provided examination directives to acquire x-ray imaging of the Veteran's spine and left shoulder. However, to date, no x-ray images of the Veteran's spine and left shoulder have been obtained. Thus, on remand, x-rays should be obtained. As the above development may result in the addition of relevant, upon completion of the directed development, new addendum opinions should be obtained to determine the etiology of any present back and left shoulder disabilities. The Board notes the contention of the Veteran's representative that, in requesting addendum opinions, the RO has developed negative evidence for the purpose of denying the Veteran's claims. However, in seeking addendum opinions, the RO addressed deficiencies in the prior opinions and the record, which necessitated the requested addendums. "When a case is remanded by the [Board,] the agency of original jurisdiction will complete the additional development of the evidence or procedural development required." 38 C.F.R. § 19.38. If an examination report "does not contain sufficient detail, it is incumbent upon the [RO] rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2. When the VA provides a medical examination, it must provide an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The provisions of 38 C.F.R. § 4.2 require the RO to obtain an adequate examination rather than leave this task to the Board. The situation here was expressly addressed by this Court. "Because a medical opinion by a Regional Office rating board or hearing officer is not 'independent medical evidence' as described in Colvin and, therefore, cannot be relied on by a Board panel to support its opinion, much time and effort would be saved if the rating boards insisted on adequate examination results initially rather than leaving the Board panels to do so." Tucker v. Derwinski, 2 Vet. App. 201, 203 (1992) (citing 38 C.F.R. § 4.2 (1991); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990)). Thus, the Board finds the RO's prior development efforts to be appropriate. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to locate and secure complete copies of all the Veteran's service treatment and personnel records, to include the Veteran's service in the Navy, Army, and National Guard. Requests of the State Adjutant General's office and RMC, through DPRIS, PIES, or other appropriate vehicles, must be made and documented. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or futility in making further attempts to obtain them must be verified and documented in the record and the Veteran notified accordingly. 2. If the service treatment records are not obtained, send the Veteran a letter informing him of that fact and informing him that he can submit evidence in lieu of his STRs to include, but not limited to, statements from service medical personnel, VA military files, medical evidence from hospital, clinics and private physicians who treated the Veteran, pharmacy prescription records, employment physical examinations, insurance examinations, letters written during service, photographs taken during service, and buddy certificates or affidavits. Allow for an appropriate period of time for him to respond. 3. Schedule the Veteran to obtain x-ray imaging of the Veteran's back and left shoulder. 4. Only after the above development is completed, refer the Veteran's claims file to a medical professional to obtain addendum opinions as to the etiology of the Veteran's claimed lumbar and left shoulder disabilities. The claims file must be made available to and reviewed by the examiner in conjunction with the opinion, to include any new evidence obtained pursuant to the above development. If the examiner believes that an in-person examination is warranted for either the Veteran's claimed back or left shoulder disabilities to provide an informed opinion, then schedule the Veteran for a full VA examination. 4. After all the above development is completed to the extent possible, readjudicate the claims on appeal. If the benefit sought remains denied, issue a supplemental statement of the case, and return the matter to the Board. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.