Citation Nr: 1805172 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-29 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disability, to include degenerative disc disease and osteoarthritis. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Counsel INTRODUCTION The Veteran served in the Air National Guard from January 1978 to May 1979 and in the Mississippi Army National Guard from October 1979 to March 1989. This matter is on appeal from a July 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned at a July 2011 videoconference hearing. A hearing transcript is in the claims file. In April 2013 and April 2016, the Board remanded the issues on appeal for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets the additional delay that will result from once again remanding the claim for service connection for a low back disability for a VA medical addendum opinion. As mentioned above, the Board remanded this claim to provide the Veteran with a VA examination. The Board directed the VA examiner to take "into consideration the documented medical history as well as his [the Veteran's] competent assertions of falling during service." Accordingly, the Veteran was afforded another VA examination in March 2017. While the VA examiner confirmed that the Veteran did have a low back disability, she, nevertheless, opined that it was not related to his active duty. She stated that since the first documented evidence of a low back disability was in August 2001, some 22 years after the Veteran was discharged in 1979, the claimed condition was less likely than not incurred in or caused by service. The VA examiner's opinion was inadequate because she failed to consider the Veteran's statements when providing a supporting rationale. The examiner's opinion suggests that since there was a lack of evidence of a low back disability in service, his current disability could not be related to any injury or otherwise related to his active duty. Resultantly, further medical commentary is necessary before a decision can be made on the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders.). Accordingly, the case is REMANDED for the following action: 1. Return the case to the VA examiner who performed the March 2017 VA examination for an addendum opinion. If the examiner is not available, a different examiner may render the requested opinion. The entire claims file, to include a copy of this REMAND and the Veteran's service treatment records, must be made available to the VA examiner, who must note its review. If the examiner or the RO finds it appropriate, the Veteran may be reexamined or undergo any clinical testing. (a) The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that any current low back disability had its clinical onset during active service or is related to any incident in service. (b) For the purpose of providing the requested opinion, the examiner must presume that the Veteran is competent to report both an in-service injury and a history of back symptoms. (c) If the requested opinion cannot be made without resorting to speculation, the examiner must state this and explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. The examiner must provide a complete rationale for all opinions provided. Such a rationale addresses any evidence of record that is contradictory to the examiner's findings and reconciles this evidence with the examiner's conclusions/opinions. Absence of evidence alone is not sufficient to undermine the Veteran's competent reports of in-service back injury. 2. After the VA examination has been completed, review the medical report to ensure that it adequately responds to the above instructions. If the report is deficient in this regard, return the case to the VA examiner for further review and discussion. 3. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the claim for service connection for a low back disorder. If the benefit sought is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ P.M. DILORENZO 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) (2017).