Citation Nr: 21065595 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-18 705 DATE: October 26, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1990 to October 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) regional office. The Veteran and a relative testified at a Travel Board hearing before Veterans Law Judge (VLJ) S. L. Kennedy in February 2016. Further, the Veteran testified at an October 2018 videoconference hearing before VLJ Michael Lane. The Veteran was advised during the hearing that his appeal would be decided by a panel of VLJs and that he had the right to a third hearing. He waived that right on the record. See October 2018 Board Hearing transcript, at 24; Arneson v. Shinseki, 24 Vet. App. 379 (2011). Hearing transcripts have been associated with the claims file. The extensive procedural history of this case has been set forth in prior Board decisions and will not be repeated, except as needed to explain the procedural posture of this case. In September 2019, the Board again directed the AOJ to adjudicate the Veteran's clear and unmistakable error (CUE) claim (denying compensation for a low back disorder in December 1997), then reopened and remanded the issue of service connection for a low back disorder, having found it was intertwined with the CUE claim. The CUE claim was denied in a March 2021 rating decision, and the Veteran was notified of his appeal rights. He has not submitted a formal appeal. Therefore, the Board has no jurisdiction of the matter. Facts and Analysis Regarding the Veteran's claim for entitlement to service connection for a low back disorder, the Board finds that remand is required. Pursuant to the September 2019 Board decision, upon denial of the CUE claim, the AOJ was directed to develop and readjudicate the claim for entitlement to service connection for a low back disorder. A supplemental statement of the case (SSOC) was also to be issued to the Veteran before the case was returned to the Board for further appellate consideration. However, the evidentiary record does not show the AOJ completed these tasks. Significantly, the March 2021 rating decision that found no CUE also indicated that additional consideration for the issue of service connection for a low back disorder would be addressed under separate correspondence. See VA Rating Decision, dated March 11, 2021. The notification letter to the Veteran is dated March 12, 2021. A March 2021 VA low back examination was noted as cancelled at the Veteran's request. See Exam Scheduling Request Contention Cancellation, dated March 26, 2021. A reason for the cancellation was not identified. Notably, a March 11, 2021 Report of General Information reveals the Veteran questioned why he was scheduled for a VA back examination when the Board directed that the CUE issue must be completed first. The record also includes his repeated requests and assertations that the VA back examination should be undertaken after the CUE claim was adjudicated. See e.g., Report of General Information, dated December 4, 2020. Although the AOJ notified the Veteran that his low back service connection claim appeal was returned to the Board, the evidentiary record does not show the matter was adjudicated by the AOJ as directed in the September 2019 Board decision. See June 2021 Appeal Certification letter. As the claims file does not include a rating decision or SSOC, the AOJ has not substantially complied with the remand directives and remand is required to cure the procedural defect. See Manlincon v. West, 12 Vet. App. 238 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board must remand the claim for examination, readjudication, and issuance of the SSOC. Id. Accordingly, the matters are REMANDED for the following action: 1. The AOJ should afford the Veteran a VA examination for his low back disability. The claims folder, including a copy of this REMAND order, is to be made available to the examiner for review before the examination. The examiner is asked to determine the nature and etiology of any diagnosed low back disorder. The examiner should ask the Veteran to report history and symptomology. The examiner must consider and acknowledge the Veteran's statements in formulating any opinions. A complete written rationale must be provided for any opinion rendered. Specifically, the examiner is asked to provide an opinion on whether any current low back disorder is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including treatment for in-service back pain in September 1992. 2. Upon completion and after any additional development deemed necessary by the AOJ, service connection for a low back disorder must be readjudicated. If the benefit sought on appeal is not granted, the AOJ must send the Veteran a SSOC and afford him the opportunity to respond. Then, return the matter to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.