Citation Nr: 21010162 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 181130-1708 DATE: February 24, 2021 REMANDED Entitlement to service connection for a low back disability (claimed as chronic back pain) is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1980 to April 1982. A rating decision was issued under the legacy system in October 2007. In November 2018, the appellant opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review option. The agency of original jurisdiction (AOJ) issued an AMA rating decision pursuant to RAMP in September 2018, which is the decision on appeal. This claim was remanded by the Board in November 2017. In a March 2019 decision, the Board denied the Veteran’s claim of entitlement to service connection for a low back disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In September 2020 CAVC granted a Joint Motion for Remand (JMR) which vacated the Board’s decision and remanded it back for further adjudication because the Board failed to ensure compliance with its prior remand instructions and the statement of reasons and bases to support the March 2019 denial was inadequate. Entitlement to service connection for a low back disability (claimed as chronic back pain) is remanded. In a July 2007 Statement in Support of Claim and an October 2007 Notice of Disagreement, the Veteran stated that she injured her back during basic training at Fort Dix when she fell while carrying full gear and other soldiers fell on top of her. The Veteran contends that she required treatment during active duty as well as post – service for chronic back pain. As noted above the September 2020 JMR found that the Board failed to ensure compliance with its November 2017 remand directives. Specifically, the November 2017 remand directed the Regional Office (RO) to obtain the Veteran’s 2006 Workers’ Compensation records or give notice pursuant to 38 C.F.R. § 3.159 (e) if unavailable. After a thorough review of the record, the Board finds that the RO did not document any attempts to obtain the relevant Workers’ Compensation records and did not afford the Veteran any notice regarding unavailability. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, an additional remand to obtain these records is necessary before the Board can adjudicate the issue. The November 2017 also directed the RO to attempt to obtain the Veteran’s personnel and service treatment records under her maiden surname as well as her married surname. The Board notes that the Veteran’s military personnel records indicated that she formally requested a change of name on all official military records after her marriage in December 1980. On December 2017, the RO requested the Veteran’s entire personnel file under both surnames associated with the Veteran. However, medical and dental records were not specifically identified in that request. The Board finds that VA has not met their duty to assist the Veteran. Since there has not been substantial compliance with this remand directive, the Board finds that remand is also necessary to attempt to obtain these records. In that regard, the Board notes that while the Veteran had active duty service in the regular Army, she enlisted and separated into the United States Army Reserves (USAR) as noted in her military personnel records and DD Form 214. Accordingly, on remand the RO should also attempt to obtain the Veteran service treatment records from appropriate repositories to include repositories for USAR records. If the records cannot be located, all reasonable attempts to reconstruct them should be made. The JMR also requested that the Board discuss a January 2010 physical therapy note that assessed the Veteran’s “chronic low back pain stemming from an injury in the early 1980s”, when readjudicating the Veteran’s claim. A May 2007 letter from the Veteran’s VA doctor noted that the Veteran had a history of low back pain with intermittent flares and X-ray evidence of mild arthritis. In addition to reporting ongoing low back pain to her healthcare providers, the Veteran also indicated in a January 2016 Notice of Disagreement that she has had chronic low back pain nearly daily. VA must provide an examination with regard to claims for disability compensation when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Therefore, the Board finds that VA’s duty to assist is triggered and remand for a VA examination to determine the nature and etiology of the Veteran’s low back disability is also warranted. The matters are REMANDED for the following action: 1. Request the Veteran’s service treatment records (STRs) from the appropriate federal repositories. All requests must be made under the Veteran’s married surname and maiden surname. If the documents cannot be located, all reasonable attempts to reconstruct them should be made. If the documents cannot be located or reconstructed, a negative reply must be provided, a formal finding to that effect should be made and associated with the claims file, and the Veteran must be properly notified. 2. With any necessary assistance from the Veteran, obtain her 2006 Workers’ Compensation records to specifically include the medical treatment records. If the documents cannot be located, a negative reply must be provided and associated with the file. Notify the Veteran that the records are unavailable pursuant to 38 C.F.R. § 3.159 (e). 3. After all available records have been associated with the file, schedule the Veteran for a VA examination for her low back disability. The Veteran’s claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination and that review must be noted in the examiner’s report. Based on the examination results and a review of the pertinent medical history, the examiner should provide opinions responding to the following: (a.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current low back disability is etiologically related to her active duty service? Why or why not? Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.