Citation Nr: 21068394 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-35 057 DATE: November 10, 2021 REMANDED Service connection for a low back condition. REASONS FOR REMAND The Veteran served on active duty from December 1988 to January 1992. The claim is on appeal from a November 2015 rating decision. In February 2019, the Veteran testified at a Board hearing. The case was most recently before the Board in September 2020. At that time, the Board denied service connection for a low back condition, right and left lower extremity nerve pain, and for a left knee condition. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the parties entered into a joint motion for partial remand (JMPR), which the Court granted in a June 2021 Order. By Court Order, the portion of the Board's September 2020 decision denying service connection for a low back condition was vacated, and the matter was remanded back to the Board for further consideration consistent with the terms of the JMPR. The Veteran did not challenge the Board's September 2020 denial of service connection for right and left lower extremity nerve pain, and for a left knee condition. The Court dismissed those claims, and thus the claims of service connection for right and left lower extremity nerve pain, and for a left knee condition, are no longer on appeal. Service connection for a low back condition. The parties at the Court agreed in the June 2021 JMPR that a remand to the Board was needed based on failure to ensure compliance with a prior September 2019 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the JMPR states that the September 2019 Board remand requested a VA examination by an orthopedic specialist to determine the nature and etiology of his low back condition. In December 2019, the Veteran was provided a new VA examination by a physiatrist, a doctor that specializes in physical medicine and rehabilitation. The examiner determined the low back condition is less likely than not related to service, providing the rationale that there was no evidence that an in-service assessment of a soft-tissue bruise (contusion) on the Veteran's back was other than mild or minor, or that there was development of a distinct back condition for the remainder of his service time or within one year following his discharge date. In the Board's September 2020 decision, it addressed the Veteran's contention that the physiatrist's assessment was no more probative than the Veteran's lay assertions. The Board specifically cited to Stegall, noting that strict compliance of the remand instructions are not required, so long as the Board acknowledges the deviation and makes specific findings as to the reliability of the evidence despite the deviation, and those findings are supported by sufficient rationale. Id; D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Board then made the determination that the December 2019 physiatrist examiner was qualified to conduct the examination and render the opinions therein. The Board found that although a physiatrist does not have the identical experience and training as an orthopedist, the board certified physiatrist acted within the scope of his credentials and, based upon his training, education, and background, and was qualified to conduct the in-person examination, analyze and interpret diagnostic testing, and determine a diagnosis and render opinions therewith. See Francway v. Wilkie, 930 F.3d 1377 (2019) (explaining the requirement that the Board make factual findings regarding the qualifications of an examiner when such credentials are called into question by an appellant). In consideration of the June 2021 JMPR, the claim of service connection for a low back condition is remanded for a new VA examination with an orthopedist pursuant to the September 2019 remand directives. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since May 2020. 2. Schedule the Veteran for an examination by an orthopedic specialist to determine the nature and etiology of his low back condition. The record, including a complete copy of this remand, and the December 2019 remand, should be made available for review. The examiner should provide an opinion as to whether the Veteran's back condition at least as likely as not (50 percent or greater possibility) had its onset during or within one year of service, or is otherwise related to, his active military service. (Continued on the next page) Consideration should be given to, and the examiner is requested to comment on: (1) the Veteran's STRs noting treatment for back pain in March 1990; (2) the Veteran's statements and supporting lay statements reporting continued symptoms of back pain since discharge; (3) the April 2016 treatment record from his VA doctor stating that his injury began in service, with back pain ever since and worse now; and (4) the medical opinions provided in the October 2015 and December 2019 VA examinations. The examiner should provide rationale for all opinions expressed, including by citing to the record, and explain to the best extent possible any discrepancies between the statements of continued back pain and any gaps in treatment in the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.