Citation Nr: 21000650 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-32 588 DATE: January 5, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1980 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board denied the Veteran’s claim for service connection for a back disability. The Veteran then appealed the matter to the Court of Appeals for Veterans Claims (Court). In May 2020, the Court vacated the June 2018 decision and remanded the matter to the Board. 1. Entitlement to service connection for a back disability is remanded. In May 2020, the Court remanded the matter due to the Board’s reliance on inadequate VA examinations and failure to properly consider the Veteran’s claim under 38 C.F.R. § 3.303(b). See CAVC Decision, p. 92. The Court agreed with the Veteran’s argument that the examiner who provided the 2012 and 2017 VA back examinations impermissibly ignored the Veteran’s assertions that he experienced intermittent back pain continuously since service. Id. at 95. The Court also agreed with the Veteran’s contention that both opinions were inadequate because they were based on a factual premise that was inconsistent with credible lay evidence. Id. The Court concluded that remand for a new medical examination is necessary. Id. at 97. The Court noted that lay evidence of record indicated that the Veteran’s back pain began in service, continued after service, and worsened at some point. Id. at 96. The Court further concluded, “the Board accepted that [the Veteran] experienced continuous symptoms since service but decided it was better to let a medical professional figure out whether those symptoms were tied to the injury he experienced in service. The problem here is that the Board decided the case without actually having that question answered.” Id. The Court stated that the examiner did not account for the lay statements of record and thus did not base his opinion on all medical evidence of record. Id. at 97. Accordingly, per the Court’s directives, the matter must be remanded to afford the Veteran a new VA examination as to his claim for service connection for a back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an examiner other than the 2012 and 2017 examiner to ascertain the nature and etiology of his back condition. Any indicated evaluations, studies, or tests deemed necessary should be performed. The entire claims file, to include a complete copy of the Court’s May 2020 order and this REMAND, should be made available to the examiner designated to provide the opinion. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least likely as not (50 percent probability or greater) that the Veteran’s back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner must address all relevant evidence of record, including but not limited to lay statements and evidence of a 1984 in-service back injury, as it pertains to in-service incurrence and continuity of symptomatology. If the examiner chooses to reject the Veteran’s lay statements, the examiner must provide a reason for doing so. The Veteran’s lay statements may not be rejected solely due to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. (Continued on the next page)   The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.