Citation Nr: 21007331 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-29 592 DATE: February 9, 2021 REMANDED Entitlement to service connection for a lower back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to August 1982 and from February 2003 to February 2004. This appeal returns to the Board of Veteran’s Appeals (Board) after a 2020 Board Remand that requested additional development for the issue of service connection for a lower back disability. The Department of Veterans’ Affairs (VA) Agency of Original Jurisdiction (AOJ) issued an October 2020 Supplemental Statement of the Case (SSOC). The case has returned to the Board for appellate review. 1. Entitlement to service connection for a lower back disability is remanded. The Veteran contends his lower back pain began in or was aggravated by his active duty service. See March 2014 Notice of Disagreement; see also June 2006 VA Examination (Veteran reciting that his back pain had worsened). The Board’s June 2020 Remand directives requested the examiner to identify all low back diagnosis, and to opine whether the disorder was at least as likely as not related to an in-service injury, event or disease. The examiner failed to identify such diagnoses and simply provided an opinion denying direct service connection due to no in-service event, injury, or disease. The Board finds this inadequate under both Stegall v. West, 11 Vet. App. 268 (1998) and Barr v. Nicholson, 21 Vet. App. 303 (2007). Firstly, under Stegall, the Board is under a duty to ensure compliance with the terms of the Remand. In his case, the examiner failed follow the directives of the Remand by not identify all low back diagnosis and addressing them. As such, the examiner overlooked the March 2001 diagnosis of nodule growth on the Veteran’s back. While this diagnosis is in 2001, it falls between the Veteran’s periods of active duty service. The Veteran subsequently complained of worsening back pain. As such, it is possible that the Veteran’s period of active service from February 2003 to February 2004 could have aggravated this back injury. Similarly, the examiner failed to acknowledge numerous other post-active service low back diagnoses and discuss them as well, including a November 2019 diagnosis of chronic lower back pain, November 2015 diagnosis of S1 radiculopathy, December 2015 EMG scores for the Veteran’s spine identifying abnormal scores in the thoracic and lumbar spine regions; March 2016 degenerative disc changes at the lower lumbar levels at L5-S1, or the June 2006 VA examination diagnosis of lumbar strain. Because the examiner failed to identify and address these low back diagnoses, the case must be remanded under Stegall. Secondly, under Barr, once the VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one. In this case, the examinations of record only address direct service connection for the Veteran’s low back claim, none of them address aggravation. The Veteran has two periods of active service, the first in 1982 and the second beginning in February 2003. Between these periods the Veteran was diagnosed with at least one back issue, the growing nodule in March 2001. Since 2006, the Veteran has consistently claimed that his back pain has started or was aggravated in service. While in March 2001 the Veteran denied back pain, the nodule was identified. It is possible that the Veterans second period of active duty service may have aggravated this back issue, including causing painful symptoms. While not specifically in the remand directives, the AOJ and examiner are reminded of the Veteran’s credible statements of aggravation must be considered. The October 2020 VA examination opinion, nor any other opinion, addresses aggravation of the Veteran’s low back conditions. Therefore, it is necessary to remand to obtain an adequate medical opinion under Barr. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine whether the nature and etiology of the claimed low back disorder, if possible, it should be obtained from the same examiner who conducted the October 2020 examination. The need for an additional examination (in-person, telehealth, etc.) is left to the discretion of the examiner. The examiner is to: (a) Identify all low back diagnoses of record. This includes all back diagnosis that are not specifically identified as part of the cervical in nature. The opinion should, at minimum, address the October 2020 diagnosis of lumbosacral strain, November 2019 diagnosis of chronic lower back pain, November 2015 diagnosis of S1 radiculopathy, December 2015 abnormal EMG scores in the thoracic and lumbar spine regions; March 2016 degenerative disc changes at the lower lumbar levels, and the June 2006 VA examination diagnosis of lumbar strain. (b) For each diagnosis, the examiner is to opine whether it is at least as likely as not related to an in-service injury, event, or disease. The opinion should identify and address all low back diagnosis of record, including those during, between, and after service. (c) For each diagnosis, the examiner is to opine whether it is at least as likely as not that it was aggravated beyond its natural progression by the Veteran’s active duty service. A rationale must be provided for all opinions expressed. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.