Citation Nr: 21013444 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-03 825A DATE: March 9, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2007 to June 2008. He also had an earlier period of active duty for training (ACDUTRA) from May 2004 to November 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2018 when it was remanded for further development. Entitlement to service connection for a back disability is remanded. Although the additional delay is regrettable, the Board finds another remand is required as there has not been substantial compliance with the June 2018 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 AOJ has not substantially complied with the remand orders, the Board itself errs in failing to ensure substantial compliance. Id. In the June 2018 Board remand, the Board requested an addendum opinion regarding the etiology of the Veteran’s low back disability. Specifically, the Board requested a VA examiner opine as to whether the Veteran’s back disability was related to service, including (i) exposure to detonations in Iraq, (ii) treatment for low back pain during his period of ACDUTRA in 2004, or (iii) treatment for back pain during active duty in 2007. In providing the requested opinion, the examiner was directed to consider the Veteran’s competent reports of being near detonations during service in Iraq and of continuity of symptomatology since service. In the subsequent August 2019 VA opinion, a VA examiner opined that the Veteran’s current back disability was not related to his service. The examiner stated that, while there is evidence the Veteran complained of low back pain during August 2004, he was evaluated and treated at that time and there were no further complaints of low back pain during the rest of that active duty period; thus, the condition was acute and transitory and resolved with the treatment provided at that time. Additionally, the examiner stated that the Veteran’s service treatment records were silent for complaints, evaluation, and treatment related to the current back disability during his active duty service (from 2007 to 2008), including incident near detonations. However, the examiner did not address whether the Veteran’s back disability was related to his treatment for back pain during active duty, including a July 2007 service treatment record noting back pain and a diagnosis of lower back sprain. In addition, the examiner’s rationale suggests she did not adequately consider the Veteran’s competent reports of being near detonations during service in November 2007 or his reports of symptoms since service. Thus, the Board finds remand is required to ensure substantial compliance with the above prior remand directives. Stegall, 11 Vet. App. 271. Additionally, a September 2012 VA treatment record indicates that the Veteran reported that his back disability was a result of carrying heavy loads, installing power lines, and completing excavations during active duty. Thus, on remand, the examiner should address this contention. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the period from October 2019 to the present. 2. After obtaining any additional records, obtain an addendum opinion from an appropriate clinician, other than the August 2019 VA examiner, regarding the etiology of the Veteran’s back disability. A complete copy of the claims file must be made available to the examiner. If the reviewing clinician determines that an examination of the Veteran is needed, then such should be scheduled. After a review of the Veteran’s claims file, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s back disability is related to his service, to include (i) exposure to detonations in Iraq; (ii) treatment for low back pain during period of ACDUTRA in 2004; (iii) treatment during active duty in 2007; and (iv) his military duties, including carrying heavy loads, installing phone lines, and completing excavations. In providing the requested opinion, the examiner should consider the Veteran’s statement that he has experienced pain in his back since his service. A complete rationale for all opinions must be provided. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence (if any) would allow for a more definitive opinion. K. MARENNA Acting 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.