Citation Nr: 21069774 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-44 435 DATE: November 19, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active service in United States Marine Corps (USMC) from June 1979 to March 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of that hearing is associated with the claims file. The Board previously remanded the case for further development in April 2021. The case has since been returned to the Board for appellate review. The Board finds that additional development is warranted before the remaining claim on appeal is decided. In the April 2021 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of his back disability. A review of the record shows that the Veteran was afforded the directed examination in July 2021. At that time, the examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the Veteran's service. In so finding, the examiner stated that the Veteran's in-service symptoms of stiff muscles and spasms should be self-limited and resolve without further issues. Further, that the Veteran did not have any additional complaints or appointments due to his low back pain. Additionally, the examiner noted that at the 2017 examination, the Veteran reported that his back pain did not begin until 2012 and that the medical records do not reflect complaints of back pain until 2014. The Board finds that the July 2021 medical opinion is inadequate. In this regard, the examiner did not provide a sufficient rationale for the conclusions reached. Specifically, the examiner did not explain the significance of finding that the Veteran's in-service stiff muscles and spasms, with low back strain were self-limited. Moreover, the examiner appeared to rely on the finding that the Veteran did not seek treatment of his lower back for 30 years after service. However, the examiner did not address the Veteran's statement that he began to treat his back pain with over-the-counter medication shortly after service. Further, the examiner did not address the Veteran's medical treatment record which reflects that the Veteran had subjective complaints of back pain since service that had recently increased. Finally, the Veteran's attorney has indicated that the examiner was mistaken when she recorded the date of onset of his back disability as 2012. Indeed, the record does note that the Veteran received an X-ray on his back in 2007. Therefore, the Board finds that the development conducted does not adequately comply with the April 2021 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, a new VA medical opinion should be obtained to determine the nature and etiology of the Veteran's back disability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran's low back disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any back disability is etiologically related to service. In forming the opinion, the examiner must discuss the Veteran's assertion that he has treated his low back pain with over-the-counter medication, and that he has had back pain since service. Further, the examiner must address the private treatment records which reflect subjective complaints of chronic back pain since service which has increased during the appeal. A complete and detailed rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand, and undertake any other development found to be warranted. (Continued on the next page) 4. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.