Citation Nr: 21063403 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-45 743 DATE: October 14, 2021 REMANDED Entitlement to service connection for intervertebral disc syndrome (IVDS) of the lumbar spine (claimed as low back condition) is remanded. REASONS FOR REMAND The Veteran had active military service from February 1983 to February 1986. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a December 2015 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for IVDS of the lumbar spine. In his August 2017 VA Form 9, the Veteran requested a personal hearing before a Veterans Law Judge. A hearing at a local Department of Veterans Affairs (VA) office was scheduled for May 3, 2019. The Veteran did not report for his scheduled hearing, has not provided a statement of good cause for failing to report, and has not asked for the hearing to be rescheduled. In light thereof, his request for a personal hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board previously denied the Veteran's claim for entitlement to service connection for IVDS of the lumbar spine in January 2020. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (the Court). In an October 2020 Order, the Court entered a Joint Motion for Partial Remand (JMPR) of the parties, vacating the Board's decision as to entitlement to service connection for IVDS of the lumbar spine and remanding the matter to the Board. The JMPR determined that the Board erred by failing to satisfy VA's duty to assist in providing an adequate medical examination. Accordingly, a remand was required to address the Veteran's lay statements that he has experienced intermittent low back pain since service. In April 2021, the Board remanded the Veteran's appeal in accordance with the Court's Order, instructing the AOJ to schedule the Veteran for a new VA examination to determine the etiological relationship between the Veteran's current IVDS of the lumbar spine and his active service, including service treatment records documenting low back pain and his reports of ongoing low back pain since his discharge. 1. Entitlement to Service Connection for IVDS of the Lumbar Spine Following the Board's April 2021 remand, the Veteran received a new VA examination in April 2021. The examiner acknowledged the report that the Veteran's thoracolumbar spine condition began in April 1983 when his back "went out" during a 12-mile road march. However, in determining that it is less likely than not that the Veteran's IVDS of the lumbar spine is related to his active service, the examiner emphasized that there was a 12-year gap between his service separation and his first post-service complaints of back pain in 1998. This finding is at odds with the Veteran's repeated indication that he has experienced intermittent back since 1983. Indeed, the examiner did not reconcile these reports with his conclusion that the Veteran first complained of low back pain in 1998. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the examiner did not properly consider the Veteran's reports of intermittent low back pain since service in rendering his opinion, the Board concludes that there was not substantial compliance with the Board's April 2021 remand. Accordingly, another remand is necessary to cure this deficiency. The matter is REMANDED for the following action: Obtain an addendum opinion to the April 2021 VA examination. Following review of the claims file, the examiner should address the following: Is it at least as likely as not that the Veteran's IVDS of the lumbar spine (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? In rendering these opinions, the examiner must consider the 1984 service treatment records showing complaints of back pain and his reports of injuring his back while marching. The examiner is also asked to comment on whether there is any evidence to prove or disprove the Veteran's report of experiencing intermittent low back pain since 1983. Provide a rationale to support the opinions proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.