Citation Nr: 21010458 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-26 436 DATE: February 24, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2018, the Board remanded the present claim on appeal to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Service Connection for a Low Back Disability Pursuant to the Board’s August 2018 remand, the Veteran was afforded a new VA-contracted examination for his claimed low back disability in September 2020. The examiner diagnosed intervertebral disc syndrome and provided the opinion that the disability was less likely than not incurred in, or caused by, a claimed in service injury, event, or illness. In providing the opinion, the examiner incorrectly noted that there was no evidence showing evaluation of, or treatment for, the Veteran over the next several years following his noted back pain in-service until his workman’s compensation injury in 2007. Notably, however, review of the Veteran’s post-service medical evidence of record reveals that he did indeed receive chiropractic treatment from at least October 2002 through January 2007, with confirmed reports of back pain prior to the work-related injury. Where the examiner relied on the inaccurate factual premise that there was a lack of records showing treatment from the time of the Veteran’s in-service back injury through the time of the work-related injury in 2007 as a basis for the negative opinion, the opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Additionally, the Board observes that the examiner who provided the September 2020 opinion did not address the Veteran’s contention of experiencing continuous back pain since service, as the Board directed in the August 2018 remand. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [a] disability such that a [service connection claim] could be proven without contemporaneous medical evidence”). A remand by the Board confers on a claimant a legal right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result of the noted deficiencies in the report of the September 2020 VA-contracted examination, there is still no adequate opinion of record addressing the etiology of the Veteran’s claimed back low disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted to obtain a new VA opinion as to the etiology of the Veteran’s claimed low back disability. This matter is, therefore, REMANDED for the following action: Arrange for the Veteran’s claims file to be reviewed by a new VA examiner to obtain a new opinion as to the etiology of the Veteran’s claimed low back disability. The claims file and a copy of this REMAND should be made available to the examiner for review. If the examiner determines that a new examination is warranted in order to provide the requested etiology opinion, arrange for the Veteran to be afforded such examination. If the Veteran is examined, any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record, and completion of any examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all low back disabilities, to include intervertebral disc syndrome and thoracolumbar spine strain, currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified low back disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during service, or is otherwise medically-related to the Veteran’s service, to include the multiple instances of documented low back pain during active service. In addressing the above, the examiner is advised that the Veteran is competent to report having back pain symptomatology since service. The examiner must consider and discuss all pertinent medical and lay evidence of record, to include evidence of treatment of back pain in the years between the Veteran’s separation from service and his work-related injury, and his assertions as to the nature, onset, and continuity of back pain symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.