Citation Nr: 21008243 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 19-23 164 DATE: February 12, 2021 REMANDED Entitlement to service connection for lumbar stenosis with disc herniation and degenerative changes (hereinafter “low back disability”) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1956 to January 1959. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen a previously denied claim of service connection for lumbar stenosis with disc herniation and degenerative changes (claimed as back condition). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A transcript is attached to the record. In a January 2020 decision, the Board reopened the claim and remanded it for additional development. 1. Entitlement to service connection for lumbar stenosis with disc herniation and degenerative changes The Veteran contends that his current back disability was incurred in service as the result of “[m]uch jumping around, so much obstacle courses, and... jumping wires.” See November 2019 Hearing Transcript. He contends that he has been having problems with his back since service. In connection with his claim, the Veteran was afforded a VA medical examination in July 2019. The examiner noted the Veteran’s report that he had injured his back in service. The examiner described the injury as “undocumented but sounds like an acute problem since not treated again.” The examiner further noted that “there are no civilian records of treatment for back after [service] until 2003 when he presented with ACUTE low back and left leg radiculopathy.” The examiner concluded that it was less likely than not that the Veteran’s current back disability was incurred in service because “[t]here is no record of any service treatment for back despite his oral history. Moreover, there is no record of non-service treatment after service until 2003 when presented with an acute disc prolapse needing surgery.” In its January 2020 remand, the Board found the July 2019 examination inadequate because it relied solely upon the absence of records of medical treatment in service and before 2003. The Board noted that the record on appeal contained a statements from the Veteran of back pain since service, including a September 1972 statement from the Veteran that he had had chronic back pain for the past 15 years and had been denied a job in 1962 due to a back disability. Pursuant to the Board’s remand, the RO obtained an addendum medical opinion to address the nature and etiology of the Veteran’s low back disability. The August 2020 addendum opinion consists of the following: “records reviewed stated with required probability there is no evidence in the record that during service or for several [years] following discharge of a back issue.” Unfortunately, the addendum opinion is again inadequate for the reasons previously discussed. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (a medical opinion which relies on the absence of contemporaneous medical evidence and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate). The matter is REMANDED for the following action: Obtain an opinion from a qualified clinician, other than the August 2020 VA examiner, regarding the nature and etiology of the Veteran’s current low back disability. The need for an examination is left to the discretion of the clinician. After reviewing the record, the clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current low back disability had its onset during his active service or is otherwise causally related to the Veteran’s active service. In providing the opinion and rationale, the clinician should consider the relevant evidence of record, to include the following: the Veteran’s service treatment records, the Veteran’s September 1972 application for VA compensation on which he reported back pain which had “recurred chronically for the last fifteen years;” and the Veteran’s November 2019 hearing testimony that he has experienced back pain since service. When considering the Veteran’s description of his in-service injury and post-service symptoms, if there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, 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.