Citation Nr: 21065819 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-05 290 DATE: October 27, 2021 REMANDED Entitlement to service connection for lumbar spine degenerative disc disease and arthritis (lumbar spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In August 2019, the Board remanded the case to the RO for additional development. With apologies to the Veteran, the Board has determined that another remand is necessary. A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The question for the Board is whether the Veteran has a current lumbar spine disability that is caused or aggravated beyond its natural progress by his service-connected status post total right knee replacement disability. The Board remanded the Veteran's lumbar spine disability claim in August 2019 as a September 2015 VA examiner provided an incomplete report. First, the VA examiner did not consider whether the lumbar spine disability is directly related to service. Second, although the examiner addressed whether the Veteran's service-connected right knee disability caused the lumbar spine disability, the examiner did not address whether the right knee disability aggravated the lumbar spine disability. The Board also directed VA obtain any inpatient records from the Fort Dix, New Jersey, hospital. Those records have been obtained. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The January 2020 VA examiner stated it was less likely than not that the Veteran's right knee disability aggravated his lumbar spine disability. As rationale, however, the VA examiner cited medical literature listing and discussing the risk factors for developing lumbar spine arthritis. The examiner concluded that it is more likely that the Veteran's degenerative disc disease with radiculopathy and spine arthritis are secondary to age related changes. This rationale does not preclude the Veteran's right knee disability accelerating the aging process or generally aggravating the lumbar spine. The Veteran asserts ever since the service injury, he has altered his gait which in turn increased pressure or stress on his lumbar spine. The VA examiner concluded service did not cause the lumbar spine disability because the service treatment records do not contain any complaints, treatment, or diagnosis of a back problem or abnormality. The absence of a disability in service treatment records alone does not preclude service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). The examiner did state that the Veteran's reported onset of back symptoms began approximately four years after separation but did not explain the significance of this fact in relation to the absence of a back problem in service. It does not preclude onset of a back disability that gradually progressed until the Veteran began experiencing symptoms in 1975. Accordingly, the Board finds the VA examiner's opinion incomplete, and another remand is necessary for a new VA opinion so that the Board can make a fully informed decision. Ongoing VAMC medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his lumbar spine claim, including records from his treating chiropractor, Dr. A. Ellis. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disability had its onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider and discuss the clinical significance the Veteran reported back symptoms began approximately four years after separation (1975). The examiner should also address whether any current lumbar spine disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected right knee, to include because of altering his gait or compensating for the right knee symptoms. The examiner is asked to discuss whether such behavior would have accelerated the disability or its onset. In offering the opinion, the examiner is asked to consider and reconcile the July 2015 opinion offered by A. Ellis. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.