Citation Nr: 18154280 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 11-19 439 DATE: November 29, 2018 REMANDED The claim for service connection for degenerative disc and joint disease of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to May 1980. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter was previously before the Board in May 2014, wherein the Board remanded for additional development, to include obtaining an addendum medical opinion. In August 2017, the Board issued a decision that denied service connection for degenerative joint disease of the lumbar spine. The Veteran appealed this decision to the Court. In a May 2018 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the August 2017 decision back to the Board. This matter was originally before the Board on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran and his spouse testified before the undersigned Veterans’ Law Judge during a January 2014 hearing. A transcript of the hearing is associated with the Veteran’s claim file. The Veteran also appealed a decision for entitlement to an increased rating for his hearing loss to include a total disability rating based on individual unemployability in May 2018. This issue is currently being processed by the RO and will not be addressed in this Board decision. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. §3.159(c). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that his degenerative joint disease originates from injuries to his back which occurred during his active duty service. Specifically, he alleges he was involved an incident when he was thrown out of a chair during an explosion in 1975 and another incident when he was hit by a motor vehicle in 1980. In a May 2014 remand, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination in conjunction with the claim of service connection for his lumbar spine disorder. The remand instructions stated that the examiner was to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar spine degenerative joint disease had its onset in service. The examiner was asked to specifically consider the Veteran’s, his spouse’s, and M.L.B.’s lay statements, which were deemed to be credible by the Board, when providing his or her opinion. The Veteran was afforded a VA examination in August 2014. The VA examiner opined that it is less likely than not that the Veteran’s current back condition had its onset in service by determining that the lay statements and reported lay history conflicted with medical records. In short, the VA examiner failed to take into consideration the credible lay statements when forming her opinion. In issuing the August 2017 decision, the Board relied in part on evidence from the August 2014 VA medical opinion. As noted in the JMR and an October 2018 appellate brief, the parties agreed that the August 2014 VA medical opinion was inadequate for adjudication purposes as there was not substantial compliance with the Board’s 2014 remand directives. Accordingly, it is necessary to remand this issue so that an adequate addendum medical opinion is obtained. The matter is REMANDED for the following action: 1. Obtain additional VA medical treatment records from October 2017 to present. All reasonable attempts should be made to obtain any identified records. 2. Once the VA treatment records have been obtained, the RO should arrange for a VA examination with medical opinion to address the claim that the Veteran’s low back disability is related to service. Whether an in-person examination is required is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Notwithstanding the absence of records of immediate treatment for low back in service, but considering the Veteran’s, his spouse’s, and M.L.B.’s lay statements as credible, provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar spine disorder had its onset in service or is otherwise related to service. The physician or examiner must address whether the lay statements of continuity of symptoms, i.e., the same back pain experienced in service, is that same back pain post service that ultimately led to his back surgery are not medically relevant and determinative in the Veteran’s case. Also, the examiner should address whether or not it is at least as likely as not that an in-service injury where the Veteran was run over by a truck, and landing under the vehicle on his back; or, thrown off of his chair following an explosion and landing very hard on his back would subsequently result in degenerative joint disease of the lumbar spine. The examiner should comment on the above and set forth the complete rationale for all opinions. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent and credible lay assertions of pertinent symptomatology from service to the present. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel