Citation Nr: 25003166 Decision Date: 03/05/25 Archive Date: 03/05/25 DOCKET NO. 18-18 196 DATE: March 5, 2025 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to May 1975 and from November 1976 to March 1980. The Veteran's second period of active duty service was declared dishonorable for VA compensation purposes. See December 1986 administrative decision; DD Form 214 (listing character of discharge for service from November 1976 to March 1980 as "Under Conditions Other Than Honorable"). These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The matters were previously denied in a July 2023 Board decision. The Veteran filed a timely appeal before the United States Court of Appeals for Veterans Claims (Court). In June 2024, the Veteran and VA (the parties) agreed to a Joint Motion for Remand (JMR) vacating the Board's decision on the claims and remanding the matters back to the Board for readjudication consistent with the terms of the JMR. The Court granted the JMR in July 2024. In the JMR, the parties agreed that the Board erred in relying on the April 2023 VA medical opinions because the VA examiner issued negative medical nexus opinions without addressing the Veteran's lay reports asserting that his disabilities were related to injuries incurred during basic and physical training, as directed in the Board's January 2023 remand decision. The matters were returned to the Board with instructions to obtain new medical opinions that substantially comply with the Board's January 2023 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon return of the matters to the Board, the Veteran's representative submitted additional argument drafted by the Veteran's Court attorney. In addition to the Stegall issue raised in the JMR, the attorney argued, in relevant part, that the April 2023 VA medical opinions were inadequate for adjudicative purposes because the examiner's rationale relied solely on the absence of complaints documented in the Veteran's service treatment records in violation of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Court attorney also argued that the examiner failed to explain why it was more likely that the Veteran's disabilities were due to age and wear and tearing over time rather than the injuries the Veteran reported suffering during service, or why such claimed injuries were not a part of the wear and tear attributed to the Veteran's disabilities. In October 2024, the Board remanded the matters for additional VA medical opinions addressing the etiology of the Veteran's neck and back disabilities. The VA examiner was directed to expressly acknowledge and address the Veteran's lay reports that his current disabilities were related to injuries incurred during basic and physical training. VA medical opinions were received in December 2024. The VA examiner issued negative nexus opinions, stating it was less likely than not that the Veteran's current low back and neck disabilities were directly related to his military service because there was "no available objective documentation to establish any continuity of care or diagnosis of a chronic low back [or neck] condition from 1975 until 2014." The VA examiner simply stated that he acknowledged the Veteran's assertions of the origins of his current disabilities, but the examiner did not provide any meaningful analysis as to why these lay reports did or did not support medical nexus. The VA examiner stated that the Veteran's neck and back conditions were more likely than not due to age progression and wear and tear. Regrettably, the December 2024 VA medical opinions are inadequate for adjudicative purposes, as they are nearly identical to the opinions proffered in April 2023, which were determined in the JMR to be legally insufficient. The claims must be remanded for addendum VA medical opinions that include a thorough assessment of the Veteran's lay reports and their relevance, if any, on the issue of medical nexus. As this remand is interlocutory in nature, the Board intimates no opinion on the credibility of the lay reports of record at this junction. See Miller v. Wilkie, 32 Vet. App. 249, 259-62 (2020) (A medical opinion may inform the Board's understanding of the medical feasibility and credibility of lay statements). The RO shall also be requested to obtain any additional VA treatment records from October 2024 to the present for evidentiary review. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2024 to the present. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's current neck and low back disabilities. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current neck and/or low back disabilities were incurred in or are otherwise etiologically related to the Veteran's active duty service? In reaching a conclusion, the VA examiner is required to address the Veteran's lay contention that his disabilities are due to injuries sustained during basic and physical training, with continuity of symptomatology thereafter. See February 2023 VA Form 21-4138; lay reported history of injuries from April 2023 and December 2024 VA examinations. The VA examiner should explain whether the Veteran's alleged in-service injuries were severe or traumatic enough to cause his current disabilities. If the VA examiner determines that the Veteran's conditions are due to wear and tear over time, as previously found by other examiners, the VA examiner should address whether the Veteran's reported in-service injuries are part of the wear and tear attributed to his disabilities. If the VA examiner has any medical reason to doubt the Veteran's lay reports regarding his claimed in-service injuries and continuity of symptomatology thereafter, this should be stated, with a supporting explanation. Stated another way, do the Veteran's reports about his symptoms and injuries align with how the disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board has not made a credibility determination at this juncture. The VA examiner is cautioned against relying solely on (1) the absence of contemporaneous documentation of in-service diseases or injuries in the Veteran's service treatment records or (2) the absence of post-service chronicity of care/treatment to support a negative nexus opinion. The RO is requested to ensure that all medical opinions issued by the VA examiner are accompanied by complete rationales based on the examiner's clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.