Citation Nr: 21071250 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-21 823 DATE: November 30, 2021 REMANDED Entitlement to service connection for the Veteran's lumbar spine strain is remanded. Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 2003 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran's above claims in an August 2020 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (CAVC), and in May 2021 CAVC vacated the August 2020 Board decision with regard to the Veteran's lumbar spine strain and bilateral foot claims, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Lumbar Strain and Bilateral Foot Disabilities As part of the September 2018 Board remand, the RO was required to provide the Veteran with VA examinations to determine the nature and etiology of his current lumbar strain and any current diagnosed foot disabilities. The Veteran was provided with an April 2019 VA Back Conditions examination and an April 2019 VA Foot Conditions examination, however, for the reasons discussed below, the Board finds these examinations to be inadequate. In proffering their opinions the examiner failed to address the Veteran's competent lay reports of his symptoms from active-duty service to present day, and instead relied on a lack of treatment records in forming their negative opinions. However, "symptoms, not treatment, are the essence of any evidence of continuity of symptom[s]." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Based upon the above, the VA examiners did not provide an adequate rationale for their opinions and therefore did not adequately assess whether the Veteran's claimed lumbar strain and bilateral foot disabilities were related to his active-duty service. As such, the Board finds that a new examination and opinion is necessary. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner, who has yet to examine the Veteran, with sufficient expertise to address the etiology of the Veteran's claimed lumbar strain. The electronic records should be made available to and reviewed by the examiner. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran's lumbar strain at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. The examiner must also opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar strain pre-existed his active duty service, and if so, whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar strain was aggravated by his active duty service. Notation of different disorders relating to abnormal curvature of the spine, including thoracic kyphosis, thoracic scoliosis, lumbar lordosis, and lumbar scoliosis, should not be considered in reaching this conclusion, unless the examiner believes they are related to the lumbosacral strain. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed bilateral foot disabilities. The electronic records should be made available to and reviewed by the examiner. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the any diagnosed bilateral foot disabilities at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.