Citation Nr: 20003002 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 13-00 062 DATE: January 14, 2020 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected cervical spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1969 to January 1972. This matter was previously before the Board in April 2015 and January 2017, both times the Board remanded the matter for further development. Upon returning to the Board, in a decision of August 2017, the Board denied entitlement to service connection for a low back disability. That determination was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a May 2019 Memorandum Decision, set aside the Board’s August 2017 decision, and, in so doing, remanded the Veteran’s case to the Board for action consistent with that Memorandum Decision. In the May 2019 Memorandum Decision, the Court found that the Board erred in relying on a March 2017 VA examination report when it denied the Veteran’s claim. The Court found that the March 2017 VA examiner erred as a matter of law in requiring the Veteran to establish a “nexus of care” to find the Veteran’s claimed low back disability was related to service. Therefore, the examiner’s negative linkage opinion is inadequate. Also, the Court found that the examiner’s failure to address lay evidence deprived the Board of the information that it determined was necessary to adjudicate the Veteran’s claim, rendering the examination inadequate for adjudication purposes. The Court also found that the March 2017 VA opinion did not substantially comply with the Board’s prior remand. Therefore, the Court determined that a remand is warranted for the Board to obtain an adequate medical opinion that substantially complies with the mandate of its January 2017 remand order. Finally, the Court recognized that the Veteran has substantially raised the theory of service connection for a low back disability secondary to his service-connected cervical spine disability. Consequently, the Board finds that the Veteran should be afforded a VA examination to determine if the Veteran’s claimed low back disability was caused or aggravated by the Veteran’s service-connected cervical spine disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the in-service incident in which an earthmover turned over while he was driving it, and a motor vehicle accident in which the Veteran was involved in 1971. In discussing the requested opinions, the examiner must account for the Veteran’s lay statements describing back symptoms since his military service and a July 1973 correspondence from the Veteran in which he describes having back trouble. It is noted that the Veteran is competent to attest to maters of which he has firsthand knowledge, including observable symptomatology such as numbness. If there is any basis to support or doubt the history provided by the Veteran, the examiner should fully explain this basis The examiner must also opine as to whether the Veteran’s low back disability is at least as likely as not (1) proximately due to the service-connected cervical spine disability, or (2) aggravated beyond its natural progression by the service-connected cervical spine disability. The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, Associate Counsel 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.