Citation Nr: 21075757 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-26 223A DATE: December 21, 2021 REMAND Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for allergic rhinitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1989 to July 1993, including overseas service in the Southwest Asia during the Persian Gulf War. He had additional service in the Navy Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a December 2019 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These matters have been before the Board previously, most recently in July 2021, at which time they were remanded for additional development. The Board finds there has not been substantial compliance with is prior remand directives, and that another remand is needed to properly adjudicate this claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2021 VA back opinion is inadequate for adjudication purposes. In its July 2021 remand, the Board directed that an addendum opinion was to be obtained which determined the etiology of the Veteran's lumbar spine disability. The examiner was asked to provide an opinion as to whether any lumbar spine disability had its onset during active service or was at least as likely as not caused or aggravated by service. The Board directed that the examiner was to address the Veteran's statements that his current lumbar pain is related to heavy lifting during service, and his contention that he has had pain ever since. Additionally, the VA examiner was directed to address Navy Reserve service treatment records (STRs), and VA treatment record which suggest a longstanding history of lumbar pain. A VA opinion was obtained in August 2021. The VA examiner determined that it was less likely than not that the Veteran's lumbar spine condition was related to service because his separation examination did not reveal a history of or findings of an ongoing acute or chronic treatment of the lumbar spine. The VA examiner further stated that "medical records reviewed did not reveal continuous ongoing medical treatment or aggravation of acute or chronic low back condition during time of discharge from active military service to present day." This opinion failed to address the Veteran's lay statements, his Navy Reserve STRs, and his VA treatment records. A new VA medical opinion must be obtained to comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the examiner also inexplicably referred to a clearly and unmistakably pre-existing low back condition in direct contradiction of Board findings as to soundness on entry. The August 2021 VA allergic rhinitis opinion is also inadequate for adjudication purposes. In its July 2021 remand, the Board directed that an addendum opinion was to be obtained which determined the etiology of the Veteran's allergic rhinitis. The examiner was asked to provide an opinion as to whether any allergic rhinitis had its onset during active service or is at least as likely as not caused or aggravated by service to include as due to exposure to volcanic ash in the Philippines, and as due to climate and environmental changes in the Persian Gulf. The Board directed that the examiner was to address the Veteran's competent and credible statements concerning longstanding congestion, itchy/watery eyes, sinus problems, and a history of hay fever; as well as the March 1991 assessment of mild allergic rhinitis. A VA opinion was obtained in August 2021. The VA examiner determined that it was less likely than not that the Veteran's allergic rhinitis condition was related to service because his separation examination did not reveal a history of or findings of an ongoing acute or chronic treatment of an allergic rhinitis condition. The VA examiner further stated that "medical records review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic allergic rhinitis condition during time of discharge from active military service to present day." The VA examiner also found that it was less likely than not that the Veteran's allergic rhinitis condition was aggravated beyond its natural progression because his separation examination did not reveal a history of or findings of an ongoing acute or chronic treatment of an allergic rhinitis condition. The VA examiner stated, "Medical record review did not reveal continuous or ongoing medical treatment or aggravation of acute or chronic allergic rhinitis condition during time of discharge from active military service to present day." The opinion failed to address the Veteran's lay statements and the March 1991 inservice assessment of mild allergic rhinitis. A new VA medical opinion must be obtained to comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Return the file to the VA examiner who provided the August 2021 VA back opinion. The claims file must thoroughly be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determined another VA examination is necessary, one should be provided. The VA examiner must determine if it is at least as likely as not (50 percent or greater probability) that any currently diagnosed lumbar spine disability is at least as likely as not related to his active military service. The VA examiner must address the Veteran's competent and credible statements concerning in-service onset and chronicity of symptoms since service. The Veteran asserts that his current lumbar pain is related to heavy lifting during service, and he contends he has had pain ever since service. The VA examiner must also address the Veteran's Navy Reserve STRs and VA treatment records which suggest a longstanding history of lumbar pain. A full and complete rationale for all opinions expressed is required. 2. Return the file to the VA examiner who provided the August 2021 VA allergic rhinitis opinion. The claims file must thoroughly be reviewed by the examiner. If the examiner is not available, another appropriate medical professional may be consulted. If the examiner determined another VA examination is necessary, one should be provided. The VA examiner must determine if it is at least as likely as not (50 percent or greater probability) that any currently diagnosed allergic rhinitis disability is at least as likely as not related to his active military service or is at least as likely as not caused or aggravated by service to include exposure to volcanic ash in the Philippines and climate and environmental changes in the Persian Gulf. The VA examiner must address the Veteran's competent and credible statements concerning longstanding congestion, as well as STRs showing in-service complaints of congestion, itchy/watery eyes, sinus problems, and a history of hay fever; as well as the March 1991 assessment of mild allergic rhinitis. A full and complete rationale for all opinions expressed is required. 3. Then readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.