Citation Nr: 18159496 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-04 961 DATE: December 20, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right lower extremity disability, to include the right hip and as secondary to a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in U.S. Army from October 1969 to April 1972 with service in Vietnam. The Veteran testified at an October 2017 Board video conference hearing before the undersigned Veterans’ Law Judge. A transcript of the hearing is of record. Previously, the Board remanded the issues on appeal for additional development in June 2018 and another remand is warranted to comply with the prior remand directives. 1. Entitlement to service connection for a low back disability is remanded. 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). Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of entitlement to service connection for a low back disability and service connection for a right hip disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in September 2018. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because a VA examiner referred to the “at least as likely as not” standard and did not fully opined as to whether it was clear and unmistakable (obvious, manifest and undebatable) that the Veteran’s preexisting low back disability was not aggravated (i.e., increased in disability) during service. As such a remand is warranted for a supplemental VA opinion. 2. Entitlement to service connection for a right lower extremity disability, to include the right hip and as secondary to a low back disability is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for a low back disability could significantly impact a decision on the issue of service connection for a right lower extremity and hip disability to include as secondary to a low back disability, the issues are inextricably intertwined. As such a remand of the claim for service connection for a right lower extremity and right hip disability is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s low back disability. The examiner must opine whether: (a.) Is it clear and unmistakable (obvious, manifest and undebatable) that the Veteran’s preexisting low back disability WAS NOT aggravated (i.e., increased in disability) during service? (b.) If the examiner determines that it is not clear and unmistakable that a low back disability was not aggravated during service (in response to item a above) then: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current low back disability is related to the preexisting low back disability that was aggravated during service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in-service.” If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of residuals of the low back disability by the Veteran’s service. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the September 2018 VA examination noting the Veteran’s low back disability clearly and unmistakably existed prior to service and this is well documented as the Veteran was receiving compensation for his low back injury at the time of entrance to service. In addition, the October 2018 examiner noted some in-service complaints of back pain with no new injury or increased severity from complaints prior to service. The examiner found that the low back was not at least as likely as not aggravated beyond normal aggravation by service. In addition, attention is invited to the service treatment records (STRs) reflecting complaints of and treatment for his low back in October 1969, September 1970, January 1971 and November 1971. A July 1972 VA examination noted low back pain with radiation to the right leg and accompanying lumbosacral spine X-ray results noting a hazy appearance to the sacroiliac joints, very likely indicating rheumatoid spondylitis. Finally, the Veteran has described the strenuous nature of his in-service duties including lifting, carrying and ongoing low back pain. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian