Citation Nr: 21062731 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-55 071 DATE: October 12, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from May 1974 to April 1978, with additional service in the California and Arizona Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2019. This case was previously before the Board in January 2020 and March 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. Entitlement to service connection for a low back disability is remanded. Unfortunately, another remand is necessary, as the RO failed to substantially comply with the directives in the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The Board directed the RO to request the Veteran's full personnel and treatment records from his service with the Arizona Air National Guard, including by contacting the Arizona Air National Guard directly. The RO sent another request to the Personnel Information Exchange System, which merely duplicated its previous efforts; upon receiving a negative response, the RO did not contact the Arizona Air National Guard directly to request personnel and medical records. Further, the RO obtained an opinion regarding whether the current low back disability was related to the Veteran's active service. The VA examiner opined that the back disability was less likely as not incurred during service, as he complained of back pain after "lifting a heavy bathtub" in May 2005, and as there is no documentation of chronic back problems in service. However, the examiner did not discuss the back pain reported in January 1977 in the service treatment records or the Veteran's reports that he experienced back pain that he treated with over-the-counter remedies prior to the May 2005 injury. Thus, the examiner appears to have impermissibly dismissed the Veteran's reports of continuous back pain solely because these complaints were not documented in medical treatment records, see Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007), and also to have based the opinion on an inaccurate factual premise, see Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). For these reasons, the opinion is inadequate, and on remand, another opinion should be obtained. The matter is REMANDED for the following action: 1. Request the Veteran's full personnel and medical treatment records from his service with the Arizona Air National Guard from the appropriate repositories, including but not limited to a request to the Arizona Adjutant General's Office and/or the Arizona Air National Guard. Associate those documents with the claims file. 2. Then, forward the claims file to an appropriate clinician who has not previously offered an opinion in this case to determine whether the low back disability is related to the Veteran's active duty military service, to include relevant National Guard service. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the low back disability began in or is otherwise caused by the Veteran's active service. The examiner MUST specifically address the Veteran's lay statements regarding onset and continuity of symptoms, including his September 2019 Board hearing testimony. The examiner MAY NOT disregard the Veteran's reported history of symptoms solely on the basis that they are not recorded in contemporaneous medical records. The examiner MUST also specifically address the complaint of back pain reported in the service treatment records in January 1977, and any other complaint of back pain or related symptoms in any relevant medical treatment records in the claims file. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.