Citation Nr: 21012486 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-28 811 DATE: March 4, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1965 to October 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in September 2020, at which time the claim was remanded for additional development, to include scheduling the Veteran for a VA examination and opinion to evaluate his claim. The case has since returned to the Board. 1. Service connection for a back disorder is remanded. Unfortunately, as will be discussed in detail below, the Veteran’s claim must be remanded yet again for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran claims entitlement to service connection for a back disorder. In particular, the Veteran asserts that he injured his back when he was a passenger in a vehicle that was involved in an accident in August 1967, and that the symptoms of this back injury continued to progress in the years following his discharge, ultimately resulting in his current back pathology. In the September 2020 Remand, the Board instructed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back disability. See September 2020 Board Decision. The Board remand specifically instructed the examiner to opine as to any relationship between the Veteran’s back disability and his active service, to include the August 1967 motor vehicle accident. Id. In this regard, the Board further noted that the evidence of record tended to validate the Veteran’s competent assertion concerning the occurrence of a motor vehicle accident in August 1967 and his resultant back injury. See id. The Veteran was afforded a VA back examination in in January 2021, with an accompanying medical opinion. See January 2021 VA Back Conditions Disability Benefits Questionnaire (DBQ); January 2021 VA Medical Opinion DBQ. The examiner determined that the Veteran’s diagnosed lumbosacral strain and degenerative arthritis of the spine was less likely than not related to his active service. See January 2021 VA Medical Opinion DBQ. In support of this negative determination, the VA examiner noted that she was “unable to find any records of [the Veteran’s back] pain having started within 1 year of separation of service.” Id. Further, as concerning any potential relationship between the Veteran’s back disability and the 1967 automobile accident, the VA examiner stated that she “[could] not find any medical records about the incident where [the Veteran] states he was injured and what kinds of symptoms he had at time of injury.” Id. The Board finds the January 2021 VA medical opinion, obtained pursuant to the Board’s September 2020 remand, to be inadequate for several reasons. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). First, the VA examiner based her negative opinion solely upon the absence of documentation of in-service complaints of or treatment for a back disorder. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). See also September 2020 Board Decision (noting that “the Veteran is competent to report the onset and duration of his symptoms as well as his medical history,” and instructing that the Veteran’s lay statements “regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity” of his back disability). See, too, 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 its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, in disassociating the Veteran’s back disability from his active service, the VA examiner apparently discounted the Veteran’s competent assertions concerning the circumstances surrounding his in-service motor vehicle accident, based primarily upon her inability to locate records confirming that this accident occurred. However, in so finding, the VA examiner failed to consider the evidence tending to validate the Veteran’s competent assertions, including the corroborating statement of his spouse and the notation from VA personnel concerning the details of the disciplinary proceedings following the accident. See August 2014 Statement in Support of Claim from G.M. (on VA Form 21-4138) (reporting that the Veteran injured his low back in a motor vehicle accident during his active service and that his back pain continued to progress since his discharge); November 2017 Report of General Information (detailing the disciplinary proceedings resulting from the in-service motor vehicle accident). Accordingly, because the January 2021 VA medical opinion was based solely upon the absence of medical documentation of an in-service back injury, and because the VA examiner failed to adequately address the August 1967 motor vehicle accident, despite the Board’s explicit instruction to do so, remand is required to afford the Veteran a new VA examination and opinion. See Barr, 21 Vet. App. at 312; Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Stegall, 11 Vet. App. at 271; Dyment, 13 Vet. App. at 146-47. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule an appropriate VA examination to assist in determining the nature and etiology of the Veteran’s back disorder. The examination should be scheduled with a different examiner than the examiner who performed the September 2020 examination, if possible, and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available private and VA medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current back disorders found to be present. As to each back disability identified on examination or diagnosed during the pendency of the claim, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed back disability either (i) had its clinical onset during active service, (ii) is related to any incident of service, to specifically include the August 1967 motor vehicle accident, (iii) was manifest within a year of service separation, or (iv) was noted during service with continuity of the same symptomatology since service. For the purpose of rendering this opinion, the examiner should accept as true the Veteran’s competent lay assertions that he injured his back when he was a passenger in a vehicle that was involved in an accident in August 1967, and that the symptoms of this back injury continued to progress in the years following his discharge. See, e.g., November 2014 Notice of Disagreement (VA Form 21-0958) (stating that he was “travelling in a government vehicle as a passenger when the driver lost control of the vehicle . . . causing the vehicle to roll over an embankment which in turn ejected everyone”); September 2019 Substantive Appeal (VA Form 9) and Accompanying Statement (reporting that, as a result of the accident, he was “thrown through the front windshield of the military van” and that he and his fellow service members were “injured and sent to the hospital”). See also August 2014 Statement in Support of Claim from G.M. (on VA Form 21-4138) (reporting that the Veteran injured his low back in a motor vehicle accident during his active service and that his back pain continued to progress since his discharge); November 2017 Report of General Information (detailing the disciplinary proceedings resulting from the in-service motor vehicle accident); August 1967 Record of Proceedings under Article 15, UCMJ (reflecting a punishment of reduction of rank, suspension of 1 month, restriction to the company area for 7 days, and performance of extra duty for 7 days). Additionally, in providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions, to include any allegations of continuity of symptomatology. If the Veteran’s reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.