Citation Nr: 21076528 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-18 773 DATE: December 27, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the United States Army from January 30 to June 10, 1967. The Veteran also served with the Army National Guard from May 1966 to May 1972. The Veteran also served with the Air National Guard from August 1973 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in January 2019 and April 2021. Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran's claim and that VA has complied with prior remand directives. 1. Entitlement to service connection for a low back disability is remanded. In April 2021, the Board remanded the matter for further development, to include obtaining a new VA opinion as to whether the Veteran's current low back conditions are related to his active service. The Board noted the Veteran's contentions that he was incentivized to remain silent as to his low back conditions due to a fear of career setback, loss of retirement benefits, and appearing weak or cowardly. See Mar. 2021 Appellate Brief, p. 2. The Board also noted that the Veteran cited medical literature from the Cleveland Clinic in support of his claim and the Board directed the examiner to consider the literature. Id. In August 2021, the Veteran underwent a VA back conditions examination in which he was diagnosed with post-operative degenerative arthritis with decreased range of motion and pain. However, the examiner opined that it was less likely than not that the condition was related to the Veteran's active service. The examiner stated that from 1967 to approximately 2011, records were silent for continued treatment of a back condition and that the Veteran was seen in 2012 for his back condition. The examiner concluded that it was impossible that the Veteran's symptoms were masked for more than 35 years. The examiner also noted the Veteran's contentions that he was fearful to report his low back condition during service. However, she concluded that "during his separation physical, there should have been no reason for him to be afraid to say anything about the back condition." The examiner did not provide further rationale for this conclusion, even in light of the Veteran's contentions that he feared to report his symptoms during service. The Board notes that the Veteran is competent to describe symptoms and events observable to his senses. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the examiner failed to consider the Veteran's statements as to why he did not report his low back pain during service and the opinion is therefore inadequate. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Further, the examiner also made contradictory statements regarding the Cleveland Clinic article that the Veteran cited to in the March 2021 appellate brief. In the medical opinion, the examiner noted that all relevant records were reviewed in rendering the decision, including medical literature from the Cleveland Clinic that the Veteran cited. However, when providing support for the medical opinion, the examiner stated that she was unable to locate medical evidence from Cleveland Clinic in the record. The Board finds the examiner's statements to be contradictory and that the examiner failed to comply with the August 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, as the Board has found that the August 2021 opinion was both inadequate and failed to comply with remand directives, the matter must be remanded in order to afford the Veteran a new VA examination. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a different examiner to determine the nature and etiology of his low back disability. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions. (a.) Determine each of the Veteran's current diagnoses of low back disabilities. (b.) For each disability, determine whether it is at least likely as not (a 50 percent probability or greater) that the disability is related to the Veteran's active duty service. In responding to the above, the examiner must consider the Veteran's contentions that he did not report his symptoms in service or at separation due to fear. See Mar. 2021 Appellate Brief. The examiner must also address the Cleveland Clinic article that the Veteran cited in the March 2021 brief. The Board notes that there is a link to the literature in the brief. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. 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 explanation 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. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.