Citation Nr: 21065351 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-10 798 DATE: October 25, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1972 to May 1975, with additional service in the Army and Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2013 by a Department of Veterans Affairs (VA) Regional Office. In March 2019 and August 2020, the Veteran testified at Board hearings before two of the undersigned Veterans Law Judges and, while provided an opportunity to testify before a third Veterans Law Judge in a February 2021 letter, he did not elect to do so. The Board most recently remanded this matter in September 2021 for additional development. A remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the September 2021 remand, the Board directed that an opinion addressing whether the Veteran's low back disorder had its onset in, or is otherwise related to, his active duty service, to include his duties during basic training/advanced individual training and a 1972 back injury while changing a tire on a two-and-a-half ton truck, as well as the subsequent complaints of back pain during periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) in 1993 and 1995, be obtained. In rendering such opinion, the Board requested that the examiner consider and discuss complaints of back pain noted in the Veteran's September 1993 and June 1995 service treatment records (STRs) during periods of ACDUTRA or INACDUTRA. In this regard, the September 1993 STR indicates that the Veteran sought treatment for a lumbar strain and a Physical Profile Serial Report issued the same month limited his physical activities due to the lumbar spine strain diagnosis. The June 1995 STR reflects that the Veteran has "Chronic LBP [low back pain]." In an opinion obtained later the same month, a VA examiner opined that the Veteran's current back disorder is unrelated to the complaints of back pain during his periods of ACDUTRA or INACDUTRA in 1993 and 1995; however, she did not provide any meaningful discussion of the significance of the September 1993 and June 1995 STRs. This is particularly troubling as the examiner notes the complaints of back pain in 1995, and states that such would be consistent with the development of a degenerative process of the spine as the Veteran was 45 years of age at the time, but does not address the fact that the 1995 STR noting chronic low back pain was generated during a period of ACDUTRA or INACDUTRA. The examiner also indicates that the Veteran's current back disorder is more likely related to his civilian occupation of being a crossing guard, rather than his two years of military service. The Veteran, however, had an initial period of three years of active duty followed by numerous periods of ACDUTRA and INACDUTRA. Moreover, the examiner did not quantify for how long the Veteran worked as a crossing guard; therefore, it is unclear how she determined that the Veteran's civilian occupation would have been more likely to have caused damage to the Veteran's spine than his military service. Consequently, the Board finds that a remand is necessary in order to obtain another opinion addressing the etiology of the Veteran's back disorder that complies with the prior remand directives. See Stegall, supra. The matter is REMANDED for the following action: Obtain an opinion addressing the etiology of the Veteran's low back disorder from an appropriate VA clinician. An examination should only be scheduled if deemed necessary by the selected clinician. After a review of the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current low back disorder, diagnosed as degenerative arthritis of the spine, spinal stenosis, and spondylosis of the lower back, had its onset in, or is otherwise related to, his military service, to include his duties during basic training/advanced individual training and a 1972 back injury while changing a tire on a two-and-a-half-ton truck, as well as the subsequent complaints of back pain during periods of active duty for training or inactive duty for training in 1993 and 1995. In offering such opinion, the examiner must consider and discuss the September 1993 and June 1995 STRs documenting back complaints and Dr. P.M.'s October 1995 and January 1996 letters, indicating that the Veteran injured his back in 1972 and has had back pain since such time. He or she must also consider and discuss the lay statements of record regarding the onset of the Veteran's back disorder and the continuity of symptomatology thereof. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, which may not be based solely on the fact that they are not recorded in contemporaneous treatment records. A rationale for any opinion offered should be provided and, if an opinion cannot be offered without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals M. HYLAND Veterans Law Judge Board of Veterans' Appeals A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.