Citation Nr: 21010571 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 09-08 440 DATE: February 25, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1961 to January 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in October 2012. A transcript of the hearing is of record. This matter was previously before the Board in March 2013, April 2014, and July 2015 when it was remanded for further development. The Board thereafter denied the claim in a September 2017 decision. The Veteran appealed the September 2017 decision to the United States Court of Appeals for Veterans Claims (Court) and in an October 2019 Memorandum Decision, the Court set aside and remanded the September 2017 Board decision. In May 2020, the Board remanded the claim for further development.   Entitlement to service connection for a low back disability is remanded. Although the delay is regrettable, the Board finds an additional remand is required as there has not been substantial compliance with the May 2020 Board remand. A remand by the Board confers on the Veteran, as a matter of law, a right to substantial compliance with remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the Agency of Original Jurisdiction (AOJ) has not substantially followed the remand orders, the Board itself errs in not ensuring substantial compliance. Id. In the May 2020 remand order, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. Following examination of the Veteran, the VA examiner was asked to provide an opinion as to whether the Veteran’s current back disability is related to his active service, including his in-service treatment for back trouble in 1962; loading and unloading supplies from aircraft; and prolonged standing, walking, and getting in and out of vehicles during his shifts as an air policeman security guard. The examiner was also asked to provide an opinion as to whether the Veteran’s degenerative disc disease began during service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service. In providing the requested opinions, the examiner was asked to address the various statements in the record which indicate the Veteran experienced back problems in service and continuously since separation from service and whether a 2002 workplace injury was a progression of the in-service injury. However, in the subsequent November 2020 VA examination, the examiner failed to address the lay statements regarding continuity of symptomatology and did not address whether the 2002 workplace injury was a progression of the in-service injury. Therefore, the Board finds remand is required to ensure substantial compliance with the May 2020 remand. Stegall, 11 Vet. App. 268, 271 (1998).   The matters are REMANDED for the following action: Return the Veteran’s claims folder to the November 2020 VA examiner, or another examiner if he or she is unavailable, for an addendum opinion regarding the Veteran’s back disability. An examination should only be scheduled if the examiner deems one is necessary to provide the requested opinion. The examiner is asked to respond to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s current back disability, to include degenerative disc disease with facet arthropathy, spondylolisthesis, spondylosis and disc protrusion, was caused by or is otherwise related to his active service, including (i) his in-service treatment for back trouble in March 1962; (ii) loading and unloading supplies from aircraft; or (iii) prolonged standing, walking, and getting in and out of vehicles during his 12-hour shifts as an air policeman security guard. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s degenerative disc disease (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity of the same symptomatology since service. In providing these opinions, the examiner should address the statements from the Veteran, his ex-wife, and his sister which indicate that the Veteran experienced back problems in service and continuously since separation from service. The examiner should also address the impact of the post-service 2002 workplace injury and discuss whether the workplace injury was a progression of the in-service injury. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.