Citation Nr: 21070448 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-05 857 DATE: November 24, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to February 1970. He appeals an August 2012 rating decision by the Agency of Original Jurisdiction (AOJ). Most recently, in August 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. As such, the case has returned to the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. In August 2021, the Board remanded the claim for an examiner to determine the nature and etiology of the Veteran's back disability. See August 2021 Board remand directives. Specifically, the examiner was directed to (1) "consider the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner is asked to address the Veteran's contention that his back disability is related to combat assault jumps, carrying heavy equipment as a radio telephone operator, sleeping on the ground in Vietnam, carrying a heavy rucksack, and riding on bumpy roads;" and (2) "also address and discuss the Veteran's contentions that events in service were the start of a progressive back disability, that he had back problems in his 20s, that they progressed to the point of needing surgery, and that surgery was the culmination of a progressive back disability that began because of military activities." Id. (emphasis added). As a result, an October 2021 VA opinion was produced. However, the clinician's opinion failed to adequately address the second point outlined above as required by the prior August 2021 Board remand. While the October 2021 clinician discussed the Veteran's contention that his back disability is related to combat assault jumps, carrying heavy equipment as a radio telephone operator, sleeping on the ground in Vietnam, carrying a heavy rucksack, and riding on bumpy roads, he did not discuss the Veteran's contention that events in service were the start of a progressive back disability, that he had back problems in his twenties, that they progressed to the point of needing surgery, and that surgery was the culmination of a progressive back disability that began because of military activities. See October 2021 VA opinion. To summarize, the Veteran generally argues that the physical toll of the events he endured during service were the beginning of what is now his current back disability. He stated that he did have back problems in his twenties, and as they worsened, they reached the level of necessitating surgery. Ultimately, he contends that all his current back problems stem from his time in service and the physical activities he was required to perform. The Board notes that the Veteran is competent to report that he experienced these observable back symptoms beginning in his twenties that have continued to the present. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, this contention was not specifically addressed by the October 2021 VA clinician as required by the August 2021 Board remand. The examiner instead provided a general statement that degenerative spine disease is considered a natural aging process with a likely familiar component. See October 2021 VA opinion. However, this response does not adequately address the remand directive as outlined previously by the Board and discussed herein. As such, the Board finds that there has not been substantial compliance with its remand directives and an additional remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his back disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing directive #1 above, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinions must include a notation that this record review took place. It is up to the discretion of the reviewing clinician whether a physical examination of the Veteran is needed to answer the questions below. The reviewing clinician should answer the following: (a.) Is it at least as likely as not that the Veteran's back disability was incurred in, or is otherwise related to, his time on active service? The examiner should specifically address the Veteran's contentions that events in service were the start of a progressive back disability, that he had back problems in his twenties, that they progressed to the point of needing surgery, and that surgery was the culmination of a progressive back disability that began because of military activities. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page) 3. After completing the above to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.