Citation Nr: 21004181 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 11-21 046 DATE: January 26, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty as an armor crewman in the United States Army from August 1974 until his honorable discharge in August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2016, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This matter was previously remanded for additional development in September 2016. The Board then denied the claim in a May 2019 decision. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Remand (JMR), the case was remanded to the Board for readjudication and to obtain an adequate VA examination. Entitlement to service connection for a low back disability. The Veteran asserts that he injured his back during active service and that he has been in pain ever since. See June 2016 Hearing Transcript. The August 2018 VA examination failed to address these contentions. Although the Board regrets the additional delay, the claim must be remanded for an adequate VA examination. The Court’s JMR states as follows, “remand is required because the Board erred by failing to ensure the Department of Veteran Affairs (VA) satisfied its duty to assist. Specifically, the August 2018 VA examination was inadequate because it did not address Appellant’s lay statements of continuity of symptoms.” As a result, the Board cannot make a fully informed decision. This matter must be remanded because the Board is precluded from exercising independent medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Order an addendum opinion from the August 2018 and May 2011 VA examiner or if they are unavailable, an equally qualified examiner may be substituted. The examiner should opine as to whether it is at least as likely as not that the Veteran’s current low back disability is etiologically due to injury or disease in service. In doing so, the examiner should specifically consider the Veteran’s lay statements. The examiner is directed toward the following: (a.) The lay statements in the Veteran’s June 2016 hearing where he stated he has had back pain since 1976. The Board is not asking the examiner to weigh the lay statements as such falls outside the scope of the examination; rather, the examiner may comment upon whether such statements are medically consistent or inconsistent with relevant medical evidence of record. All relevant medical records should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. A copy of this remand and the May 2020 JMR should be made available to the examiner. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by CAVC for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109b, 7112. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.