Citation Nr: 21070176
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 16-38 323
DATE: November 23, 2021

REMANDED

Entitlement to service connection for a low back disorder, to include degenerative disc disease and spinal stenosis, is remanded.

REASONS FOR REMAND

The Veteran, who is the appellant, had verified active duty for training with the Army National Guard from June 1991 to August 1991 and from June 1992 to August 1992, along with service in the National Guard from October 1990 to October 1996. 

This matter was previously before the Board on several occasions, most recently in January 2021.  The Veteran was afforded an additional VA examination in September 2021, at which time the examiner provided several opinions.  Although the examiner provided the requested opinions, he did not address the Veteran's contentions, including his symptoms and history, which per the remand instructions had to be acknowledged and considered in formulating any opinion.  The examiner also did not address the statements from the Veteran's spouse nor did the examiner address the April 1991 statement from Dr. H, as was required in the prior remand.  As noted above, the Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998).

The matter is REMANDED for the following action:

Return the claims folder to the examiner who provided the September 2021 medical opinions.  Following a review of the folder, the examiner is requested to provide the following opinions:  (a) Whether it is at least as likely as not (a 50 percent or greater probability) that any current low back disability or residuals thereof are related to an in-service injury during a verified period of ACDUTRA or INACDUTRA. 

(b) Opine whether any low back injury, including any lumbar strain, clearly and unmistakably preexisted a verified ACDUTRA or INACDUTRA period of service.  

(c) If it is determined that a low back disability clearly and unmistakably preexisted a verified period of ACDUTRA or INACDUTRA, the examiner is asked to opine whether the preexisting disability clearly and unmistakably was NOT aggravated (i.e., permanently worsened beyond the natural progression) by or during a confirmed period of ACDUTRA, or a preexisting injury that was aggravated by or during a confirmed period of INACDUTRA.  If aggravation is found, the examiner must provide the basis for the finding that a low back disability preexisted service, specifically address the baseline severity of the disability before it was aggravated by service, and identify any supporting clinical records.  

When rendering the above opinions, the examiner must address and consider in formulating any opinion the Veteran's contentions, including his symptoms and history, as well as the statements from the Veteran's spouse and the April 1991 statement from Dr. H.  The examiner is advised that the Veteran is competent to report his symptoms and history.  

Complete detailed rationale is required for each opinion that is rendered. 

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. S. Kelly, 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.