Citation Nr: 20046432 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 17-28 989 DATE: July 10, 2020 REMANDED Entitlement to service connection for degenerative disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to May 1984. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. A transcript of the hearing is of record. The Board remanded this matter for additional development in December 2019. Unfortunately, as will be discussed below, the matter must once again be remanded for further development. In its December 2019 remand, the Board noted that the Veteran’s claim was denied following a May 2014 VA examination, wherein the examiner stated that there were no documents reporting back symptoms since March 1976. The Board indicated that the record contained an April 1984 (dated April 12, 1983 at the top) report of medical history, wherein the Veteran reported recurrent back pain and he was noted to have chronic lower back pain. The Board observed that while the May 2014 VA examiner opined that the Veteran’s claimed degenerative disease of the lumbar spine was less likely than not incurred in or caused by the claimed in-service injury, event, or illness–the examiner indicated that he could not resolve the issues without resorting to mere speculation. The Board found that the May 2014 VA examiner’s opinion was inadequate, as the examiner did not provide a rationale or basis for the opinion. It indicated that, specifically, the examiner did not address the Veteran’s April 1984 report of recurrent back pain. The Board requested that the Veteran be scheduled for an appropriate examination to determine the nature and etiology of degenerative disease of the lumbar spine. The examiner was asked to opine whether it was at least as likely as not (a 50 percent or greater probability) that any low back disability was etiologically related to his active service. The examiner was to specifically address the Veteran’s in-service complaints, diagnoses, and treatment regarding his spine. Any opinions were to consider the Veteran’s reports regarding the onset and duration of his symptoms. In conjunction with the Board remand, the Veteran was afforded a VA examination in January 2020. At that time, a diagnosis of lumbar spine degenerative disc disease and degenerative arthritis was rendered. Following examination, the examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner noted that the Veteran reported recurrent back pain between 1974 and 1976 during active duty service. X-rays were normal at the time and he was diagnosed with low back strain. She stated that subsequent service treatment records and medical records were silent with respect to complaints, evaluation, diagnosis, and treatment of a back condition until 1996. Thus, there was no nexus between the Veteran's complaints in service and the subsequent diagnosis of his low back condition in 1996, twenty years later. She indicated that the Veteran was diagnosed with lumbar spine degenerative disc disease and degenerative arthritis in 1996, 12 years after separation from active duty service, at the age of 50. She stated that low back strain was not a precursor of lumbar spine degenerative disc disease and degenerative arthritis. The examiner cited to several medical articles to support her findings. The examiner also noted that the Veteran worked at the post office as a mail carrier from 1984 until 2006, when he retired. She indicated that lifting and carrying during this employment at least as likely as not contributed additionally to the development of his lumbar spine degenerative disc disease and degenerative arthritis. Therefore, it was less likely than not that the Veteran's lumbar spine degenerative disc disease and degenerative arthritis were etiologically related to his active service. Although the requested examination was performed and the required opinion was provided, the examiner failed to address the Veteran’s reports of recurrent back pain and the notations of chronic low back in the physician’s summary section of the April 1984 retirement report of medical history. These reports were specifically noted in the prior remand as having not been addressed by the previous examiner. They were also not addressed in the most recent opinion. Furthermore, the examiner did not address any reports regarding the onset and duration of the Veteran’s symptoms. The Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). The matter must be remanded for compliance with the directives of the prior Board remand. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. If available, return the file to the examiner who provided the January 2020 VA opinion. Following a review of the folder, to include the April 1984 (dated April 12, 1983 at the top) retirement report of medical history, wherein complaints of recurrent back pain and physician’s notations of chronic low back pain are reported, the examiner is requested to render the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that any low back disability is etiologically related to the Veteran’s active service? The examiner should specifically address the Veteran’s in-service complaints, diagnoses, and treatment regarding his spine, including the April 1984 report of medical history report. The opinion must also consider and address the Veteran’s reports regarding the onset and duration of his symptoms. Complete detailed rationale should be provided for each opinion rendered. If the opinion requested above cannot be given without resorting to mere speculation, the VA examiner should provide clear rationale for such conclusion. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.