Citation Nr: 21003683 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-37 814 DATE: January 22, 2021 REMANDED Entitlement to service connection for intervertebral disc syndrome (low back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1966 to June 1976 with service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2018 and December 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional VA examinations. Pursuant to the December 2019 Board remand, the Veteran underwent a VA examination in January 2020. The examiner was directed to opine as to whether the Veteran’s low back disability was related to his active duty service, to include in-service complaints of back pain. The examiner provided a negative opinion. However, it does not appear that the examiner considered the Veteran’s in-service complaints of back pain. The examiner relied on a note from Dr. W.P. saying the Veteran’s back strain in Vietnam had resolved, disregarding the rest of the Veteran’s record maintaining back pain since service and various instances of symptoms and treatment. It also appears the opinion from Dr. W.P. was related to a Worker’s Compensation Claim at the time. The Veteran contends his back pain began after an injury in Vietnam and continued since then. The record reflects the Veteran has maintained that his back pain has continued since service and has become progressively worse. The Veteran has also provided additional lay statements from friends and family, including his ex-wife, attesting to this fact. The Veteran’s service treatment records reflect multiple instances of back pain and lumbosacral strain in service. When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, remand for an addendum opinion is required. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran’s low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his low back disability was incurred in, aggravated by, or etiologically related to his military service, to include his back injury in Vietnam. The examiner should address the Veteran’s contentions that his back pain began in-service and continued since then, as well as the corroborating statements of record. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.