Citation Nr: 21009361 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-47 523 DATE: February 22, 2021 REMANDED Entitlement to service connection for an upper back disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1962 to June 1966. This appeal to the Board of Veterans’ Appeals (Board) is from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. A transcript of the hearing is of record. The Board subsequently remanded this claim back to the RO in May 2020 for further development and consideration – including to have the Veteran examined for medical opinion concerning the etiology of any upper back disability. Unfortunately, there has not been compliance with the remand directives, including the acceptable substantial compliance, so the Board regrettably must again remand this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than “strict” or “exact” compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for an upper back disability, to include as secondary to a service-connected disability, is remanded. The Board’s prior, May 2020, decision granted service connection for a low back condition (claimed as lower back pain). But the Board, instead, remanded this remaining claim for service connection additionally for an upper back condition (claimed as upper back pain) so the Veteran could undergo a VA examination of his upper spine and so the examiner could then comment on the origins of any upper back disorder confirmed to exist. Concerning secondary service connection, the examiner was asked to opine on whether any upper back disability, including pain, is secondary to a service-connected disability, including especially to the low back condition the Board had just earlier in that decision determined to be a service-connected disability. The Veteran is also service connected for coronary artery disease, tinnitus, and bilateral hearing loss. In November 2020, to this end, the Veteran underwent this VA examination and the examiner provided an adequate opinion regarding the notion of direct service connection. However, as concerning secondary service connection, the examiner did not opine on whether any upper back disability was caused or aggravated by a service-connected disability. Rather, the examiner mere stated that the Veteran’s current upper back disability is not proximately due to or aggravated by a cervical strain (upper back injury) he sustained during his service. Ultimately, the examiner provided a direct service connection opinion under the secondary service connection headings on the VA examination report. As such, it is still necessary to obtain a secondary service connection opinion and adequate rationale for the Veteran’s upper back disability. See Stegall, 11 Vet. App. at 271   Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s upper back disability is at least as likely as not proximately due to OR aggravated by any service-connected disability, including by his low back disability. The examiner is asked to provide opinions on both proximate cause AND aggravation, including especially in relation to the Veteran’s low back disability. *The prior November 2020 examiner at least seemingly only addressed the notion of direct service connection, not also the additionally claimed notion of secondary service connection, which is the reason the Board is still needing this additional comment to address this other possibility. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.