Citation Nr: 21065714 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 13-32 581 DATE: October 27, 2021 REMANDED The issue of entitlement to service connection for a lower back condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May to November 2001 and May 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in April and September 2015 at which time it was remanded for further development. It was again before the Board in July 2016 when service connection for both a respiratory condition and a lower back condition was denied. The Veteran appealed that decision to the United States Court of Veterans Appeals (CAVC), and, in an October 2017 Memorandum Decision, the Court set aside the July 2016 decision and remanded the claims to the Board for further proceedings consistent with the Memorandum Decision. The claims were again before the Board in May 2018, at which time the Board again remanded them for additional development, and July 2020 when both claims were once more denied. The Veteran appealed that decision to the CAVC, which resulted in a July 2021 joint motion for partial remand (JMPR) by the parties. A July 2021 Order by CAVC dismissed the claim for entitlement to service connection for a respiratory condition and remanded the matter regarding entitlement to service connection for a lower back condition to the Board for compliance with the instructions in the JMPR. The Board issues this decision in response. In accordance with the JMPR instructions, the issue of entitlement to service connection for a lower back condition is now remanded to obtain an addendum VA examination opinion. When the VA orders an examination, it must conduct a "thorough and contemporaneous medical examination." Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All medical examinations ordered by the VA must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). An adequate medical opinion does not contain only data and conclusions, "but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). "[I]t is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing Board's duty to return inadequate examination report); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). Remand confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders, and the Board has a duty to ensure that compliance. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the JMPR emphasized the Board's failure to ensure substantial compliance with the CAVC's October 2017 remand and the inadequacy of the exam upon which the Board based its July 2020 decision. Thus, remand for an addendum opinion is needed to address both issues. The matter is REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA medical examiner to issue a medical opinion regarding the Veteran's claim of service connection for a lower back disability. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by, the examiner providing the opinion. If, and only if, the examiner determines that an examination should be conducted, one should be scheduled. Thereafter, the examiner should address the following: (a.) Please identify any current disability of the lower back. "Current" is defined as any condition identified since the filing of the claim in October 2009 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. Specifically identify whether arthritis is one of the Veteran's current disabilities, and whether degenerative disc disease specifically may be considered to be arthritis. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were incurred in, caused by, or related to service. (c.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were proximately caused by his service-connected right knee disability. (d.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were aggravated (worsened beyond natural progression) by his service-connected right knee disability. (e.) Please state whether any disability identified in part (a.) may be characterized as a congenital or developmental defect. (f.) For each disability characterized as a congenital or developmental defect in part (e.), please state whether it is at least as likely as not (50 percent probability or more) that any condition was superimposed upon the defect in service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in October 2009, including Veteran statements that his lower back pain began in service and has continued since. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.