Citation Nr: 21013526 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-40 942 DATE: March 9, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1964 to May 1968. The Veteran passed away in August 2016. The Appellant is his surviving spouse and is a substituted claimant. This case has been remanded by the Board on two previous occasions, in April 2019 and October 2020. Unfortunately, as is addressed below, the Board must remand the claim once again to ensure substantial compliance with prior remands. Entitlement to service connection for a low back disability is remanded. A remand by the Board confers upon a claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In its April 2019 decision, the Board noted that there were two potential theories of entitlement: first, that the Veteran’s documented low back disability was causally related to treatment for an in-service pilonidal cyst, and, second, that the Veteran’s low back disability represented a chronic disease that had onset during, or within one year of service. The second theory stemmed from the Appellant’s Board hearing testimony, noting that the Veteran had experienced back pain for as long as she had known him, which was approximately one year after separation from service. For chronic diseases, to include degenerative arthritis, service connection may be awarded when there is evidence of continuity of symptomatology since service, or when there is evidence that the disability manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Subsequent to the April 2019 decision, the agency of original jurisdiction (AOJ) obtained a medical opinion addressing the Veteran’s low back disability. That opinion addressed the relationship between the disability and the pilonidal cyst, but did not address whether, based on the Appellant’s competent description of her observation of symptoms, the disability had manifested within one year of separation. Accordingly, the Board remanded to obtain a new opinion in compliance with the April 2019 remand instructions. In November 2020, the AOJ obtained a new medical opinion. There the examiner opined that it was less likely than not that the Veteran’s disability was caused by or incurred in service. By way of rationale, the examiner wrote: During service, back pain was acute only. Veteran was seen in service in 1966 for back pain associated with cyst. The separation examination noted normal spine and was silent for musculoskeletal symptoms or conditions. While the veteran is credible to report symptoms, he is not qualified to ascribe symptoms to a diagnosis. The claims folder is silent until 2007 when veteran reported back pain with sciatica and imaging study revealed degenerative changes. In 2009, veteran lifted a heavy object with worsening of symptoms noted on chiropractor evaluation. A nexus has not been established to service. In December 2020, the AOJ noted that the examiner had not complied with the Board’s remand instructions, specifically identifying that the examiner had not addressed the Appellant’s competent hearing testimony regarding the Veteran’s symptoms. The AOJ therefore requested an addendum opinion. In response, the examiner wrote: During service, back pain was acute only. Veteran was seen in service in 1966 for back pain associated with cyst. A pilonidal cyst does affect the skin and does not affect the lumbar spine. The separation examination noted normal spine and was silent for musculoskeletal symptoms or conditions. While the Veteran and his spouse are credible to report symptoms, of which the appellant noted chronic back pain since she’d met the veteran, they are not qualified to ascribe symptoms to a diagnosis. The claims folder is silent until 2007 when veteran reported back pain with sciatica and imaging study revealed degenerative changes. In 2009 Veteran lifted a heavy object with worsening of symptoms noted on chiropractor evaluation. Here, the examiner did not provide adequate rationale in either the original opinion or the addendum. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 124 (2007). In these opinions, there is no reasoned medical explanation or analysis. Instead, in support of the opinions, the examiner has simply listed a series of facts obtainable from a reading of the record. There is no explanation as to why those facts are medical significant or how they inform the conclusion reached. Additionally, the examiner pointed to the fact that neither the Veteran nor the Appellant are qualified to ascribe symptoms to a diagnosis. Although this is true, this finding alone does not adequately address why the lay statements of observed symptoms should be afforded less probative weight in this case. Indeed, the Board has remanded this appeal specifically so that someone medically qualified to offer insight as to the onset of a disability and medical diagnosis after reviewing a series of facts—to include reports of observed symptoms over time—could potentially do so. As noted above, this was not done. Therefore, on remand, the AOJ should obtain a new medical opinion. That opinion should address whether the Veteran’s low back disability had in-service onset, or manifested to a compensable degree within one year of service. The examiner should consider all relevant evidence, to include the competent lay statements of the Veteran and the Appellant regarding the onset of symptoms. Then, the examiner should provide a conclusion supported by adequate medical rationale. Such rationale should explain not only what evidence was used in support of the conclusion, but also provide a clear explanation as to why such evidence is significant from a medical perspective, and how it supports the conclusion reached. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a clinician other than the examiner who provided the November and December 2020 opinions, addressing the Veteran’s low back disability. The clinician should review the entire claims file, to include a copy of this Remand. To the extent possible, the reviewing clinician should identify all low back disabilities present at the time of the Veteran’s death. Then, with respect to each such disability, the clinician should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service, to include whether the disability represents a chronic disease—such as degenerative arthritis—that manifested within one year of separation from service. In doing so, the clinician should specifically address the Appellant’s observation that the Veteran had experienced back pain for the entire time that she had known him, which included a time period within one year after the Veteran’s separation from service. In this connection, the clinician should discuss whether the nature and severity of the Veteran’s disability at the time of his death was consistent with that of a longstanding disability, present since service and/or one year after service (i.e., since 1969). The reviewing clinician should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Then readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.