Citation Nr: 21073879 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-53 754A DATE: December 13, 2021 REMANDED Entitlement to service connection for a lumbosacral strain, to include as secondary to service-connected chondromalacia of each knee, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1985 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2020, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. In May 2020, the Board remanded this matter for further development. When a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, not strict, with the terms of the remanded order is required under Stegall. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Review of the record reveals that there has not been substantial compliance with the May 2020 Board remand. During the course of the appeal, the VLJ that conducted the February 2020 hearing left the Board. In a September 27, 2021, letter the Veteran was offered the opportunity for a new hearing, but did not respond. The 30-day period has expired without a response and the Board will proceed without scheduling a new hearing. Entitlement to service connection for a lumbosacral strain, to include as secondary to service-connected chondromalacia of each knee, is remanded. The Veteran claims that he injured his back in service. He has been assessed as having a lumbosacral strain. See October 2020 VA examination. He outlines an instance where he sustained a hard landing in an aircraft, and states that he has had back pain since then. He also asserts that the service-connected chondromalacia of each knee results in an altered gait that has caused or aggravated the assessed lumbosacral strain. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). In May 2020, the Board remanded this claim to afford the Veteran a VA examination and obtain an etiological opinion. In October 2020 the Veteran was afforded a VA examination that resulted in an assessment of lumbosacral strain, with an onset of 2015. The examiner concluded that the Veteran's lumbosacral strain was less likely than not incurred in, or attributable to, service. The examiner made this determination based on silence in the service records for a low back condition and stated that there was no "objective" evidence to support that the strain was related to service. The examiner highlighted that there was "no documentation" in the service records. The examiner did not address the Veteran's lay reports of injury in service or his reports of low back pain in and since service. The examiner also did not address secondary service connection. The May 2020 VA opinion is insufficient to decide the claims. The VA examiner failed to obtain a history from the Veteran and consider it in offering their opinion. Moreover, the Veteran now raises the theory of secondary service connection and an opinion is necessary to address this theory of entitlement. Accordingly, the examination report is returned. 38 C.F.R. § 4.2 The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of the claimed lumbosacral strain, or any other assessed low back disability. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. For each diagnosed disability the low back, the examiner should address the following questions: a) Is it at least as likely as not (i.e., about a 50 percent probability or greater) that the Veteran incurred any disability of the low back during service? b) Is it at least as likely as not that the Veteran's service-connected chondromalacia of the left knee and/or chondromalacia of the right knee caused any disability of the low back, to include by means of an altered gait, altered biomechanics, and/or overcompensation? c) If it is determined that any assessed disability of the low back was not caused by the service-connected chondromalacia of the left knee and/or the service-connected chondromalacia of the right knee, the examiner should address whether it is at least as likely as not that any disability of the low back has been aggravated (increased in severity) by the service-connected chondromalacia of the left knee and/or the service-connected chondromalacia of the right knee beyond natural progression, to include by means of an altered gait, altered biomechanics, and/or overcompensation. The examiner's attention is directed to the Veteran's reports of having injured his low back in a hard plane landing in service, as well as the Veteran's reports of pain in the low back in and since that incident. The examiner must address the Veteran's competent lay reports in the opinion. The examiner should also address the medical studies referenced by the Veteran's representative in the Appellate Brief dated September 2021. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.