Citation Nr: 21008077 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-64 979 DATE: February 11, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. THE VETERAN’S CONTENTIONS The Veteran contends that his low back pain is due to falls associated with his symptoms of his service-connected diabetic peripheral neuropathy. See May 2014 notice of disagreement (NOD). The Veteran also asserts that he hurt his back during service, when he stepped in a hole and twisted his ankle. See July 2018 Board hearing transcript, pp. 6-7. For these reasons, he believes he is entitled to service connection. REASONS FOR REMAND The Veteran served on active duty from February 1969 to August 1970. He was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2018 and July 2020, this case was remanded by the Board. Post-service treatment records and examination reports document recurrent back pain and that the Veteran has suffered numerous falls. See March 2000 VA examination; September to November 2000 medical records; March 2003 private treatment record; October 2013 VA treatment record; June 2018 VA treatment record. Pursuant to the October 2018 remand directives, a VA examination was provided in October 2019. The examiner diagnosed lumbosacral strain and intervertebral disc syndrome. She provided a negative nexus opinion regarding the relationship between the Veteran’s low back conditions and his service. The examiner’s opinion, however, did not adequately address whether either of the Veteran’s currently diagnosed low back conditions were caused or aggravated by his service-connected peripheral neuropathy of the lower extremities, to specifically include falls due to his peripheral neuropathy of the lower extremities. As such, the case was remanded by the Board in July 2020 and an additional medical opinion was requested. Pursuant to the July 2020 remand directives, a Medical Opinion Disability Benefits Questionnaire (DBQ) was completed in October 2020. The clinician provided a negative nexus regarding whether the Veteran’s low back disability was aggravated by his service-connected peripheral neuropathy of the lower extremities. The clinician’s rationale was that, “[t]he veteran’s exam reveals he has peripheral neuropathy of BLE but more than likely from progression of his diabetes and not his lower back injury that he sustained in 1970.” See October 2020 DBQ. The Board finds that the clinician’s rationale is inadequate as she does not explain why the Veteran’s low back condition is less likely than not aggravated by falls associated with his symptoms of his service-connected diabetic peripheral neuropathy. Further, the July 2020 remand directives requested that all outstanding VA treatment records, to specifically include the December 12, 1989 medical record discussed by the October 2019 VA examiner, be obtained. The December 12, 1989 record has not been associated with the claims file. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with the prior July 2020 remand directives. Accordingly, the Board must remand the matter again. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran’s own descriptions of the history of his low back disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to specifically include the December 12, 1989 medical record discussed by the October 2019 VA examiner. Any negative response should be in writing and associated with the claims file. 2. Contact the Veteran and request that he identify any outstanding, pertinent private treatment records related to the claims on appeal. After obtaining the necessary authorization forms from the Veteran, obtain these records and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 3. After the above has been completed to the extent possible, forward the Veteran’s claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran’s low back disability. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any current low back disability by diagnosis. (b.) For each low back disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service, specifically including a fall that occurred after he stepped in a hole and twisted his ankle. (c.) For each low back disability identified in part (a), please state whether it is at least as likely as not that the disability was caused by the Veteran’s service-connected peripheral neuropathy of the lower extremities, to specifically include falls that occurred as a result of his peripheral neuropathy of the lower extremities. (d.) For each low back disability identified in part (a), please state whether it is at least as likely as not that any lumbar spine condition was aggravated by the Veteran’s service-connected peripheral neuropathy of the lower extremities, to specifically include falls that occurred as a result of his peripheral neuropathy of the lower extremities. For the purpose of providing the opinion(s) requested in parts (b) through (d), please accept as valid the Veteran’s statements that he hurt his back during service when he stepped in a hole and twisted his ankle, and that his low back pain is due to falls associated with his symptoms of his service-connected diabetic peripheral neuropathy, and state whether a nexus between the Veteran’s low back disability and service or a service-connected disability is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (October 2013). The clinician should provide a complete rationale for any opinion rendered must be provided. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.