Citation Nr: 20051071 Decision Date: 07/31/20 Archive Date: 07/31/20 DOCKET NO. 14-11 541 DATE: July 31, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1981 to November 1993. This case is before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In March 2015, a videoconference hearing was held before the undersigned, and in October 2015, the Board remanded the case to the RO for additional development. A February 2018 Board decision denied service connection for a low back disability, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2018 Order, the CAVC granted an October 2018 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board’s decision and remanding the matter to the Board for action consistent with the terms of the JMR. In April 2019, the Board remanded the case to the RO for additional development. Entitlement to service connection for a low back disability Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding this issue, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2019 remand, the Board specifically requested the VA examiner to identify, by diagnosis, each low back disability and comment on the various low back diagnoses of record including those found on a March 2016 VA examination (lumbar spine osteoarthritis and intervertebral disc syndrome) and those documented on VA physical therapy and primary care records (chronic low back pain with left and right sciatica symptoms, lumbar dysfunction syndrome (IVDS), and lumbar spondylosis). This was not done. Nor did the VA examiner identify the likely etiology for each disability or furnish an opinion regarding how the Veteran’s lay statements regarding intermittent low back pain since an injury in service comported with generally accepted medical norms. Despite the advice that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service (which the examiner acknowledged), he still concluded that it was less likely than not that the diagnosed lumbar arthritis was caused by or incurred during service due to the lack of medical evidence for any back condition in service. The matter is REMANDED for the following action: Arrange for the Veteran’s claims file to be returned to the December 2019 VA examiner for re-review and an addendum advisory medical opinion regarding the nature and etiology of the Veteran’s low back disability. [If that provider) is unavailable, forward the record to another appropriate clinician (for review and the opinion sought).] If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged. The consulting provider should: (a). Identify (by diagnosis) each low back disability found. The examiner is asked to comment on the clinical findings of record, to include each low back diagnosis on the March 2016 VA examination and other diagnoses to include chronic low back pain with left and right sciatica symptoms, lumbar dysfunction syndrome, and lumbar spondylosis (as noted in VA physical therapy and primary care records). (b). Identify the likely etiology for each low back disability diagnosed at any time during the relevant period (from May 2012). Specifically, is it at least as likely as not (a 50 percent or greater probability) that the diagnosed disability began in (or is otherwise etiologically related to) the Veteran’s military service, to include as due to a fall from a rope bridge, participation in ruck marches, jumping out of vehicles and helicopters, and carrying heavy mortars? All opinions must include complete rationale. The examiner should review the Veteran’s lay statements (see, for example, his August 2013 and May 2016 statements and his March 2015 hearing testimony) regarding injury to (and pain of) his low back in service and intermittent low back pain since then. The examiner should opine how the Veteran’s statements comport with generally accepted medical norms. (If statements are rejected as not credible, the provider should explain (cite to) the clinical findings/medical principles that support that conclusion). The examiner is advised that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service, but providing an [alternate] likely etiology, beyond any assertion that there was no documentation of the claimed disability during service and for years after service, may overcome this. The rationale should, to the extent possible, include citation to supporting factual data and pertinent medical literature. To that end, any furnished excerpts from medical literature must include an explanation of how such literature is related to the opinion. If an opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the requisite knowledge or training), in which case the examiner should identify the further testing/specialist’s opinion/other information that is needed to provide the requested opinion. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.