Citation Nr: 21004661 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-11 008 DATE: January 27, 2021 REMANDED Entitlement to service connection for low back condition is remanded. Entitlement to service connection for neck condition is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from November 1988 to January 1999 and from December 2002 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Before analyzing the issues, the Board will address a request made by the Veteran for an additional hearing after the RO published a supplemental statement of the case in March 2020. In his February 2017 appeal to the Board, the Veteran requested a Board videoconference hearing. Subsequently, in August 2019, a Board videoconference hearing was held with the Veteran’s current counsel preset and participating and the Veteran testifying before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. On July 10, 2020, the Veteran’s representative requested another Board hearing. The Board notes that all the relevant regulatory provisions clearly and plainly discuss the Veteran’s right to a hearing. See, e.g., 38 C.F.R. §§ 3.103(c), 20.700, 20.702, 20.703, 20.1304. As noted above, the Veteran had a Board hearing in August 2019. Other than situations in which hearings have already been conducted before more than one VLJ, there is nothing in the statutory framework, regulatory provisions, or case law related to hearings that requires multiple hearings before the Board in connection with a claim. See 38 C.F.R. §§ 3.103(c), 20.700-20.717; see also 38 U.S.C. § 7107. The Board notes that the Veteran is not entitled to more than one Board hearing as a matter of right, unless specific exceptions apply, which are not shown here. For example, if a Board decision has been appealed to the Court of Appeal for Veterans Claims (Court) and is then returned to VA from the Court, another hearing could be requested at that time. A second hearing could also be requested if the VLJ that conducted the first hearing was no longer available to decide the case. Neither of those scenarios are present here. The Board will treat the request as a motion for an additional hearing. A motion requesting relief from the usual rules regarding hearing requests, such as the request for a second Board hearing, must be accompanied by an explanation of the justification for the request. The Veteran’s attorney did not indicate why a second Board hearing was necessary, merely requesting that a Board hearing be scheduled. Here, the record reflects that the Veteran already provided testimony on the present matter and has had ample opportunity to submit evidence and argument subsequent to the hearing. The desire to provide additional testimony alone does not constitute good cause for another Board hearing. As discussed above, a hearing transcript is of record. This is not a situation where a second hearing is needed before a panel member; rather, the same VLJ who presided over the most recent hearing remains available to decide his appeal. Because neither the Veteran nor his representative have provided good cause supporting his request for a second Board hearing on this matter, an additional hearing will not be afforded. 1. Entitlement to service connection for low back condition is remanded. 2. Entitlement to service connection for neck condition is remanded. The Veteran seeks service connection for low back and neck conditions. Although these matters have been remanded previously, unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding these issues and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2019 Board decision remanding the case found the July 2013 VA examination inadequate as it did not consider the Veteran’s February 2013 private medical treatment note from Dr. J.R.M. nor did the clinician make mention to the Veteran’s lay contentions regarding an injury and condition during service and continued symptoms since service. Additionally, the remand directives state that the rationale for the examiner’s opinion must not be based on the unavailability of most of the Veteran’s service treatment records. The VA examination offered in February 2020 yielded an opinion that did not consider the statements by the Veteran, did not consider the opinion by Dr. J.R.M, and relied on the lack of in-service complaints and treatment records to find the Veteran’s claimed conditions are less than likely related to his service. With the failure to follow the Board’s directives, an additional examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician, preferably a physician, to determine the nature and etiology of his degenerative disease and mild stenosis of the cervical spine and degenerative disk disease and posterolateral stenosis. The clinician must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a fall during service and the Veteran’s stated conditions of service. Additionally, the examiner must opine whether the back and neck conditions at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The Veteran’s lay statements regarding an injury and conditions during service and continued symptoms must be considered and discussed. In addition, the February 2013 private medical treatment note from Dr. J.R.M. must be considered and discussed. 2. All opinions must be thoroughly explained and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The clinician is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the clinician’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (Continued on the next page)   It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran ad his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, Attorney Advisor 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.