Citation Nr: 1605809 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 08-38 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. Jurisdiction over the claim was subsequently transferred to the RO in Seattle, Washington. The case was most recently remanded by the Board in August 2013 and has now been returned to the Board for further appellate action. In March 2012, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of the proceeding is of record. The record before the Board consists of electronic records included within Virtual VA and the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). REMAND In August 2013, the Board remanded the Veteran's claim in order to afford him a VA examination and obtain an etiological opinion regarding whether his current low back disability is related to service. The Board instructed that the examiner was to provide an opinion as to whether the Veteran's back disability is etiologically related to his active service, to include a 1974 back strain documented in his service treatment records and his reports of in-service motor vehicle accidents. In providing the requested opinion, the Board specifically directed the examiner to consider the Veteran's description of having sustained in-service motor vehicle accidents, one occurring in 1975 or 1976 en route from Camp Pendleton, California, to Milwaukee, Wisconsin, and the other occurring in Ft. Morgan, Colorado in the months prior to his discharge, and assume his statements in this regard to be credible. The Board further directed the examiner to consider the Veteran's extensive history of post-service back injuries. The Veteran underwent a VA examination in March 2014, at which time the examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In providing this opinion, however, the examiner primarily relied upon the absence of reports or treatment of back pain documented in the service treatment records following the Veteran's November 1974 back pain treatment and wholly ignored the Veteran's statements of experiencing continued symptoms following this incident. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examiner may not ignore lay statements of the Veteran, unless found by the Board to be not credible); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of disability, including during service, even where not corroborated by contemporaneous medical evidence such as service treatment records). Further, the examiner did not address or acknowledge the Veteran's reports of having sustained injuries during in-service motor vehicle accidents, as directed by the August 2013 remand. Thus, the Board finds the March 2014 VA examiner's opinion to be inadequate for adjudication purposes. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the deficiencies with the March 2014 VA opinion, an addendum opinion must be obtained regarding whether the Veteran's low back disability is etiologically related to his active service. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain all outstanding VA and private medical evidence pertinent to the claim. 2. Then, all pertinent evidence of record must be made available to and reviewed by a physician with sufficient expertise, other than the physicians who provided the September 2012, March 2013, and March 2014 opinions against the claim, to determine whether the Veteran's current low back disability is etiologically related to his active service. Based on a review of the evidence, and with consideration of the Veteran's lay statements, the physician should provide an opinion as to each low back disorder present during the period of the claim as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service, to include the 1974 back strain and the claimed in-service motor vehicle accidents. In providing the requested opinion, the physician is specifically directed to consider: (a) the Veteran's November 1974 in-service treatment for a back stain; (b) the Veteran's description of the in-service motor vehicle accidents, notwithstanding the fact that no objective records of the accidents are included in the evidence of record; and (c) his extensive history of post-service back-related injuries. For purposes of providing the opinions, the physician should assume the Veteran is a reliable historian and that his statements regarding the in-service motor vehicle accidents are credible. The examiner must consider and reconcile any conflicting medical evidence or opinions of record, to include the September 2012, March 2013, and March 2014 VA opinions. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. Undertake any additional determined to be warranted. 4. After completion of the above development, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) As noted above, this case has been advanced on the Board's docket. It also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).