Citation Nr: 21066270 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-42 684 DATE: October 29, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served in active-duty service with the Army from July 1986 to July 1989. This matter is on appeal from an April 2017 rating decision. The Veteran was afforded a February 2021 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. The Board remanded this appeal in April 2021 for additional development. The Board notes that the April 2021 Board decision remanded the issues of entitlement to service connection for a low back disability and entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), anxiety disorder, and depression for additional development. During the pendency of this appeal, in an August 2021 rating decision, service connection for PTSD was granted with an evaluation of 70 percent effective May 6, 2015. The Board notes that the Veteran submitted a September 2021 statement where he disagreed with the evaluation and effective date awarded by the August 2021 rating decision. The Board notes that it is well-established that the initial rating is a down-stream issue which must be separately appealed after a grant of service connection. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Effective March 24, 2015, regulations provide that an appeal or review must be submitted via a specific form provided by VA. 38 C.F.R. § 20.201 (a)(1). An August 2021 VA notification letter informed the Veteran of his options and forms to submit in order to appeal the rating decision. The Veteran remains free to submit the appropriate form as he has one year from the date of notice of the RO decision to do so. As to the claim of service connection for a low back disability, the Board finds that an additional remand is warranted for further development. In a November 2016 VA examination, the Veteran reported that in 1988 during a war game exercise, the Veteran injured his back while running out a cable and a sergeant pulled on it and caused the Veteran fall on his back. The Veteran also reported that marching and wearing boots throughout his service aggravated his back injury. In an April 2017 notice of disagreement (NOD), the Veteran stated that his back injury was due to a heavy workload in his unit. At the February 2021 hearing, the Veteran testified that while running a cable over a hill during a war game exercise, the section chief stepped on the cable "from far away" and caused the Veteran in full combat gear to fall on his back. The Veteran also testified that later on he was punished with several extra duty where he performed manual labor all day. In the April 2021 Board decision, the Board remanded to obtain an opinion on the nature and etiology of the Veteran's claimed low back disability and included instructions for the examiner to consider the Veteran's statements and testimony. In an August 2021 VA medical opinion, the examiner opined the Veteran's low back disability was less likely than not related to his active-duty service. The examiner opined that there was no evidence of a chronic back condition in the Veteran's service treatment records and that the Veteran's back pain had a clear etiology from a post-separation motor vehicle accident in 1992. However, the August 2021 opinion does not address the statements made in the November 2016 VA examination and April 2017 NOD, nor does the opinion address the February 2021 or explain why the Veteran's statements and testimony were not considered as requested by the April 2021 Board decision. As such, the Board finds the August 2021 opinion inadequate, and the April 2021 Board remand directives were not substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the Board finds that remand is warranted to obtain adequate opinion in compliance with the April 2021 Board remand instructions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the August 2021 medical opinion on the Veteran's low back disability. The record and a copy of this remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the August 2021 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. The VA examiner should opine as to the following: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's low back disability had its onset during, or is otherwise related to the Veteran's active-duty service? (b.) In addressing any of the above, the VA examiner should address and discuss the Veteran's statements made in the November 2016 VA examination, April 2017 notice of disagreement, and February 2021 testimony where the Veteran stated injuring his back after a fall caused by his sergeant during a war game exercise, heavy workload, and performing extra duty manual labor. (c.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (d.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (e.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (f.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. (g.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. (h.) After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.