Citation Nr: 21002496 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-38 323 DATE: January 13, 2021 REMANDED Entitlement to service connection for a low back disorder, to include degenerative disc disease and spinal stenosis, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had verified active duty for training with the Army National Guard from June 1991 to August 1991 and from June 1992 to August 1992, along with service in the National Guard from October 1990 to October 1996. This matter was previously before the Board in January 2020. At that time, the Board noted that both the Veteran and his spouse had reported and testified as to his having had continuous back problems since his period of National Guard service, with the Veteran’s wife indicating that the Veteran was a wearing a back brace in 1994 when she met him. In the prior remand, the Board noted that the August 2013 VA examiner did not address the Veteran’s contentions nor were the statements from the Veteran’s spouse of record when the opinion was rendered. Furthermore, the examiner did not address the April 1991 statement from Dr. H. The Board requested that the Veteran be scheduled for a VA examination to help determine the nature and etiology of any low back disorder. The examiner was to offer the following opinions: Whether it was at least as likely as not (a 50 percent or greater probability) that any current low back disability or residuals thereof were related to an in-service injury during a verified period of ACDUTRA or INACDUTRA. Whether any low back injury, including any lumbar strain, clearly and unmistakably preexisted a verified ACDUTRA or INACDUTRA period of service. If it was determined that a low back disability clearly and unmistakably preexisted a verified period of ACDUTRA or INACDUTRA, the examiner was asked to opine whether the preexisted disability clearly and unmistakably was not aggravated by (i.e., permanently worsened beyond the natural progression) by or during a confirmed period of ACDUTRA, or a preexisting injury that was aggravated by or during a confirmed period of INACDUTRA. If aggravation was found, the examiner was to provide the basis for the finding that a low back disability preexisted service, specifically address the baseline severity of the disability before it was aggravated by service, and identify any supporting clinical records. The examiner was advised that the Veteran was competent to report his symptoms and history and that such report had to be acknowledged and considered in formulating any opinion. In a September 2020 medical opinion, the examiner opined that the claimed condition which clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event or illness. As rationale, the examiner indicated that it was less likely than not that the claimant's current lumbar disc disease with S/P surgical changes from a fusion procedure was aggravated beyond its natural progression due to his remote military service back strains, as he had no degenerative spinal disease prior to his October 2, 1990 military enlistment, as noted on a normal physical back exam on October 2, 1990. He also had a normal back examination noted on his April 4, 1996 military separation examination. The examiner also opined that the claimed condition was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. The examiner stated that it was less likely than not that the claimant's current lumbar disc disease with S/P surgical changes from a fusion procedure was due to any remote, isolated strains he may have incurred in military service years ago, as those strains would have resolved long ago, as noted by a normal back exam on his military separation physical exam on April 14, 1996. Although the examiner provided the requested opinions, she did not address the Veteran’s contentions, including his symptoms and history, which per the remand instructions had to be acknowledged and considered in formulating any opinion. The examiner also did not address the statements from the Veteran’s spouse nor did the examiner address the April 1991 statement from Dr. H. 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 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. Return the claims folder to the examiner who provided the September 2020 medical opinions. Following a review of the folder, the examiner is requested to provide the following opinions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that any current low back disability or residuals thereof are related to an in-service injury during a verified period of ACDUTRA or INACDUTRA. (b) Opine whether any low back injury, including any lumbar strain, clearly and unmistakably preexisted a verified ACDUTRA or INACDUTRA period of service. (c) If it is determined that a low back disability clearly and unmistakably preexisted a verified period of ACDUTRA or INACDUTRA, the examiner is asked to opine whether the preexisted disability clearly and unmistakably was NOT aggravated by (i.e., permanently worsened beyond the natural progression) by or during a confirmed period of ACDUTRA, or a preexisting injury that was aggravated by or during a confirmed period of INACDUTRA. If aggravation is found, the examiner must provide the basis for the finding that a low back disability preexisted service, specifically address the baseline severity of the disability before it was aggravated by service, and identify any supporting clinical records. When rendering the above opinions, the examiner must address and consider in formulating any opinion the Veteran’s contentions, including his symptoms and history, as well as the statements from the Veteran’s spouse and the April 1991 statement from Dr. H. The examiner is advised that the Veteran is competent to report his symptoms and history. Complete detailed rationale is required for each opinion that is rendered. 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.