Citation Nr: 20032571 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 17-51 152 DATE: May 8, 2020 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to October 1987 and from June 2004 to March 2005, including additional service in the Army Reserve. This matter was previously remanded by the Board of Veterans’ Appeals (Board) in March 2019. Entitlement to service connection for a back disability is remanded. The Veteran contends that he has a back disability, to specifically include his low back disability, that is related to an in-service fall down a flight of stairs in August 2004, during his second period of service. Alternatively, he contends that a back injury he sustained in the 1990s was aggravated by the August 2004 in-service back injury. In accordance with the March 2019 Board remand, the Veteran had an examination for his claimed back disability in September 2019. The examiner confirmed that the Veteran had a diagnosis of a lumbosacral strain. The examiner opined that the Veteran’s claimed back condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner further stated that the “Veteran’s lumbar strain is less likely as not aggravated beyond its natural progression by the subjective complaints of back pain during service to include all periods of the Veteran’s service”. The examiner noted that there is no medical nexus establishing aggravation between current complaints and any military service. The examiner further noted that the Veteran was in a motorcycle accident in high school, when he was driving a motorcycle on gravel and fell off the motorcycle. Additionally, the examiner noted that the Veteran was medically qualified to be in the Army National Guard for 23 years and did not receive a medical discharge. The Board finds the September 2019 examiner’s opinion to be inadequate because the opinion is not in compliance with the March 2019 remand by the Board. The March 2019 Board remand instructed the examiner to consider the Veteran’s lay statements and complaints concerning his back, including those made to physicians, as well as a June 2017 statement from the Veteran’s representative arguing that the Veteran’s back condition was aggravated by service. It is not clear from the examination whether the examiner fully considered the Veteran’s lay statements and the June 2017 statement. Furthermore, the examiner was instructed to review the August 2005, March 2008, April 2009, September 2012, and September 2016 VA medical examinations and opinions. It is not clear whether the September 2019 examiner fully considered this medical evidence. Since the Board’s remand instructions have not been complied with, this issue must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). The matters are REMANDED for the following action: Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of the Veteran’s claimed back disability. The record must be made available to and reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following: a.) Opine as to whether there is clear and unmistakable (undebatable) evidence that the back injury that pre-existed the Veteran’s second period of service did NOT undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disability. b.) If there is not clear and unmistakable evidence that a low back disability was not worsened beyond its natural progression by his second period of active service, is it at least as likely as not (i.e., a 50 percent probability or greater) that any low back disability is related to any period of the Veteran’s service, including an in-service low back injury in August 2004? The examiner should fully consider and discuss the pertinent evidence of record to include the Veteran’s lay statements and complaints concerning his low back disability, including those made to medical providers, especially after the August 2004 service-related injury, as well as the June 2017 statement from the Veteran’s representative. See VBMS, document labeled Power of Attorney (incl. VA 21-22, VA 22a), receipt date 06/14/2017. The examiner should also fully consider and discuss the pertinent medical evidence of record including the August 2005, March 2008, April 2009, September 2012, and September 2016 VA medical examinations and opinions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.