Citation Nr: 21003388 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-51 765 DATE: January 21, 2021 REMANDED Entitlement to service connection for low back pain is remanded. REASONS FOR REMAND The Veteran service on active duty in the United States Navy from April 2008 to April 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2019. At that time, the Board issued a remand for further development, to include obtaining private medical records. This matter has now returned before the Board for adjudication. 1. Low Back Pain Unfortunately, the Board finds a remand is warranted for additional development, as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the Board’s prior remand directives for this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2019, the Board remanded the claim to obtain private treatment records and a new VA medical opinion. Specifically, the Board’s remand directed the examiner to provide an opinion on “whether the Veteran currently has or previously has a diagnosis of a back condition[,] [w]hether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back pain is related to his active service.” See November 2019 Board Decision. Additionally, the examiner was directed to obtain and consider the Veteran’s private treatment records when making the above opinions. Unfortunately, the Board finds the examiner did not comply with the prior Board directives. The examiner stated that the file was reviewed, and the 2016 opinion has not changed. See January 2020 VA Addendum/Clarification Disability Benefits Questionnaire (DBQ). The Board finds the examiner did not provide an opinion on whether the Veteran currently or previously had a diagnosis of a back condition or whether his low back pain was related to service as requested in the November 2019 Board remand. In addition, the examiner’s rationale simply stated that the Veteran did not suffer an injury during service and his complaints are the same. The examiner also stated that the 2016 imaging results showed a normal lumbar spine. See id. The Board notes that the August 2016 VA medical opinion opined that the Veteran’s low back pain was less likely than not incurred in or caused by service. The rationale was the same as the November 2016 VA addendum medical opinion. See August 2016 VA Medical Opinion DBQ. Even if the Board took the prior August 2016 VA medical opinion to try and satisfy the November 2019 remand directives, the Board finds, even then, that the examiner failed to provide the above medical opinions and a sufficient rationale. In the August 2016 VA medical opinion, the examiner opined that the Veteran’s low back pain was less likely than not incurred in or caused by service but did not address whether there was a diagnosis of a back condition. See August 2016 VA Medical Opinion DBQ. In addition, both the January 2020 and August 2016 rationales are insufficient as neither support the opinion expressed with evidence of record. The examiners failed to address the in-service and continuing reports of low back pain. While the examiners noted that the Veteran’s imaging results showed a normal spine, the examiners failed to address the imaging results that reported partial loss of lumbar lordosis and subtle annular fissures of the discs. See February 2016 VA MRI Lumbar Spine Results. As such, the Board finds a remand is warranted. The matters are REMANDED for the following action: 1. The RO should obtain a new VA medical opinion from a different examiner than the August 2016 VA medical opinion and January 2020 addendum. The examiner should provide an addendum opinion to the August 2016 VA examination report. If the examiner determines a new VA examination should be completed, then one must be completed prior to issuing an addendum opinion and RO disposition of the claims. (a.) The examiner should be provided the claims file. The examiner should state whether s/he has reviewed the file. The examiner should address the following: (b.) Whether the Veteran currently has or previously had a diagnosis of a back condition, to include chronic back pain. i. The examiner should discuss whether the Veteran’s low back pain rises to the level of being chronic. Please explain. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back pain was incurred in or related to his active service. i. If yes, why? ii. If no, why not? (d.) Whether the Veteran’s low back pain he currently experiences is the same as the low back pain experienced and documented during service. i. If yes, why? ii. If no, why not? For the above opinions, the examiner should consider and address: (e.) The Veteran’s complaints of back pain while in service, to include the: i. March 2011 service treatment record, health history questionnaire, containing a complaint of back pain; ii. July 2011 service treatment record that contains a complaint of low back pain and a report of back spasm with tenderness; iii. April 2012 service treatment record, report of medical history, that contains a complaint of recurrent back pain; iv. February 2016 VA imaging results for chronic pain showing partial loss of lumbar lordosis and subtle annular fissures; v. March 2016 provisional diagnosis of other intervertebral disc disorders; and vi. June 2017 diagnosis of moderate muscle spasm of the back. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.