Citation Nr: A25035800 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240619-452405 DATE: April 18, 2025 REMANDED Service connection for low back disability is remanded. Service connection for cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1973 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2023 and May 2024 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran challenged the November 2023 and May 2024 decisions and elected the Board's Direct Review docket. As an appeal in which the appellant requested, on the Notice of Disagreement, Direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the respective decisions on the issues on appeal. 38 C.F.R. 20.301. However, because the Board is remanding the claims herein, any evidence the Board could not consider will be considered by the RO in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Service connection for a low back condition is remanded. 2. Service connection for cervical spine stenosis is remanded. A review of the record suggests that the Veteran has been in receipt of disability benefits from the Social Security Administration (SSA). In December 2022, VA became aware that the Veteran was granted disability benefits from the Social Security Administration (SSA). See December 2022 SSA Profile and Benefit Data; see also May 2021 CAPRI treatment records. The Board notes that there are limited service records available for review. The only available service treatment records are the Veteran's entrance medical examination and report of medical history. The Veteran's remaining service treatment records are unavailable. The Board finds that a remand is warranted. In this regard, the VA opinions obtained in the VA examination reports are not adequate and constitute a pre-decisional duty to assist error. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically, the examiners relied on absence of diagnosis, treatment, or symptoms in-service when rendering their opinion. The Board notes that VA has a heightened duty to consider carefully the Veteran's available medical record and lay statements when STRs are unavailable. See Cromer v. Nicholson, 19 Vet. App. 215 (2005); see also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The examiners relied in part on the lack of documentation in the Veteran's service treatment records. As noted above, the Veteran's complete service treatment records were not found. As such, the absence of service treatment records, without a clinical explanation or rationale, is insufficient to support the examiners' negative medical conclusions. As such, on remand, another VA opinion should be obtained. In reaching this conclusion, the Board notes that it is unclear whether any of the Veteran's claimed disabilities are related to or had their onset in service in light of the missing service treatment records. As such, on remand, pursuant to the caselaw of the United States Court of Appeals for Veterans Claims (Court), the Board will invite the Veteran to submit lay evidence that corroborates his account of having recurrent back problems since service. With regard to whether there is corroborating lay evidence, the Board observes that in Washington v. Nicholson, 19 Vet. App. 362, 370 (2005), the Court noted that in Dixon v. Derwinski, 3 Vet. App. 261 (1992), the Court had held that when VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources. Id. at 263. Here, VA did not advise the Veteran adequately as to the alternative forms of information and evidence that he could use to establish his claim. See April 2023 RO letter, which constitutes a pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). In reaching this determination, as in Washington, VA failed to advise him that he could submit corroboration in the form of "buddy statements" from fellow service members as to the occurrence of his in-service right knee, left foot and/or right leg problems, as well as post-service lay evidence that relates to whether the Veteran exhibited right knee, left foot and/or right leg problems following his discharge from service. Id.; see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). In such situations, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Further, VA must sympathetically read all pleadings, but most construe pro-se (self-represented) pleadings more liberally than pleadings from represented claimants. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The RO did not obtain any SSA records prior to the rating decision on appeal. VA has a duty to obtain SSA records when it has actual or constructive notice that the Veteran is receiving benefits from this other Federal agency provided the records are potentially relevant to his VA claim, which they are in this case. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). As VA has a statutory duty to obtain and consider any SSA records, a pre-decisional duty to assist error occurred and a remand is required to allow VA to review these records. 38 C.F.R. § 20.802(a). Furthermore, with regards to the Veteran's claim for cervical spine stenosis, the RO obtained a VA neck (cervical spine) examination in May 2024 that confirmed diagnoses of spinal stenosis, spinal fusion and bilateral cervical radiculopathy. However, an opinion regarding the etiology of the Veteran's neck conditions was not requested by the AOJ or obtained from the examiner. See May 2024 Neck DBQ, April 2024 Exam Request. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the examiner failed to offer an etiological opinion regarding service connection for the claim for a cervical spine disability, the Board finds a pre-decisional error occurred and a new examination and opinion should be obtained. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain a copy of Obtain and associate with the file all SSA records (medical and administrative) concerning this Veteran. 2. Pursuant to the Court's caselaw, notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back and/or neck leg problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of low back and neck disabilities. The examiner should elicit a history from the Veteran and all findings should be reported in detail. The examiner should provide the following opinion: (a.) Is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed low back and neck disabilities had its onset during the Veteran's active service or is otherwise etiologically related to such service. (b.) In addressing the above, the examiner must acknowledge and discuss the lay evidence regarding onset of symptomatology as well as any continuity of symptomatology since onset and/or since discharge from service, as well as the absence of the Veteran's complete service treatment records. A rationale should be provided for all opinions offered. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Woehlke, V. 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.