Citation Nr: 20042402 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 14-26 371 DATE: June 23, 2020 REMANDED Entitlement to service connection for a low back disability, to include lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2006 to August 2010. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) July 2013 rating decision of the Agency of Original Jurisdiction (AOJ). In June 2016 the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran was notified of his right to have another hearing before a second VLJ. In February 2018 the Veteran notified the Board that he did not wish to have another Board hearing. In April 2017 the Board remanded the Veteran’s claim for additional development. The Board held in April 2017 that the AOJ relied on an inadequate VA examination, and that an additional VA examination would be necessary. In April 2018 the Board remanded the Veteran’s claim as the AOJ, again, relied on an inadequate VA examination, conducted in July 2017. The July 2017 examiner, like the previous examiner, relied on the absence of medical evidence in the Veteran’s service treatment records (STRs) to come to a conclusion. The Board finds, once again, that the AOJ relied on an inadequate medical examination. Although a new medical opinion was obtained, the Board finds that it does not comply with the Board’s remand instructions. When the Board’s remand requests are not substantially satisfied, the Board errs as a matter of law when it fails to ensure such compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that on January 29, 2020 the Veteran submitted a Supplemental Claim. However, as the Supplemental Claim was received more than 60 days after the October 30, 2019 Supplemental Statement of the Case, the Board retains jurisdiction in the legacy appeals system. 38 C.F.R. § 3.3244(c)(2). 1. Entitlement to service connection for a back disability, to include lumbosacral strain is remanded. Although the Board regrets the additional delay, further development is necessary before the Board may render a decision in the instant case. The Veteran asserted that he has had back pain since March 2010, due to a March 2010 fall while in service. The Board notes that the medical records do not show an in-service back injury, nor do they show complaints of a back injury or pain while in service. However, the Board finds the Veteran’s lay statements regarding the lack of evidence regarding a back injury and in-service complaints, specifically that he was trying to reenlist and thus did not want to be turned away, to be credible. This is corroborated by the Veteran’s medical discharge and the Veteran’s subsequent denial of entry into the United States Marine Corps. The Veteran is competent to report back pain resulting from a documented fall in March 2010 that has continued since. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). In September 2019 the Veteran’s medical record was examined by a VA physician, also a chief of orthopedic surgery and professor of orthopedic surgery as well as neurosurgery. The examiner found that there was a lack of evidence in the Veteran’s STRs to show the occurrence of an in-service back injury. The physician did not address the fact that the Veteran sustained a fall while in service could have caused his current back disability, nor did the examiner address the Board’s findings that the Veteran’s testimony regarding such an event was credible. Rather, the examiner focused on the lack of medical evidence. As has been pointed out in the Board’s April 2018 remand, when an examiner relies “solely on the absence of medical evidence” in a veteran’s STRs to provide a negative opinion, such an examination is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The recent VA examiner’s opinion rests on the fact that “there is no evidence in the service treatment record of a low back injury in 2010.” In its April 2018 remand, the Board directed the AOJ and by extension any subsequent examiner, to assume that “the Veteran has had low back pain since March 2010.” The question that the Board sought answers to was whether such back pain, and the Veteran’s subsequent reinjuring of his back in April 2012, was caused by his “March 2010 fall from an aircraft and his job duties, which included lifting, hauling, climbing, pushing heavy boxes, and doing sit-ups.” The Board, as finder of fact, has determined that the Veteran sustained an in-service back injury in March 2010. The Board notes that the Veteran has a current back disability. The first two requirements for service connection have been met. Shedden v. Principi, 381 F.3d 1162 (Fed. Cir. 2004). All that is absent from the record is an adequate medical opinion that properly addresses the question of whether the Veteran’s in-service back injury caused his current back disability. Based on the foregoing, the Board must once again remand the instant case for further development. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified medical examiner. An in-person examination is not required, but if the medical examiner finds one to be necessary to render the requested medical opinion then the AOJ shall schedule the Veteran for a VA examination. The examiner shall be given a copy of the claims file to review as well as a copy of these remand directives. Following a review of the claims file, which includes the Veteran’s lay testimony, the examiner shall provide the following medical opinion: (a.) Is it as least as likely as not (50 percent chance or greater) that the Veteran’s current lumbar spine condition was caused by his March 2010 in-service accident, where he fell off an airplane, and/or whether his job duties, which included lifting, hauling, climbing, and pushing heavy loads on a regular basis may have contributed to his current lumbar spine condition. The examiner shall address the Veteran’s testimony that prior to his April 2012 re-injury of his back it started to “act up” for several days prior to his fall, as well as the Veteran’s statements that his back has been causing him pain since his March 2010 in-service accident. The examiner shall provide a comprehensive rationale for their medical opinion. The examiner is reminded that the lack of evidence in the Veteran’s service treatment records regarding an in-service accident is not an acceptable rationale to find that the Veteran’s current disability was not caused by his military service. As noted above, the Board has already found the Veteran’s testimony regarding his in-service accident to be credible, and thus the examiner is instructed to provide his or her opinion based on the fact that the Veteran experienced an in-service injury to his back.   If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.