Citation Nr: 21016020 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-03 442 DATE: March 19, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Whether the reduction of the rating for the Veteran’s left (major) forearm post-traumatic median neuropathy from 50 percent to 30 percent effective February 1, 2016, was proper is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to February 1982 and from December 1990 to June 1991. The evidence of record also indicates that the Veteran served in the Reserve and the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in September 2018. 1. Entitlement to service connection for a lumbar spine disability is remanded. As a preliminary matter, the Board acknowledges that the record reflects that, in addition to his active duty service, the Veteran served in both the Reserve and National Guard. Even though there are numerous military service and personnel records associated with the record revealing the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. The Board also acknowledges receipt of an October 2019 opinion concluding that the Veteran’s lumbar spine condition is less likely than not due to his military service. The examiner reasoned that although the Veteran reported back pain in 1991, an x-ray that was taken was normal and that the Veteran had no further complaints after being seen in 1981 for low back pain. Additionally, the examiner found that “there [was] no medical evidence of thoracic spine condition” after noting that the Veteran complained of upper back pain. See October 2019 VA C&P Opinions. Nevertheless, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Furthermore, the Board acknowledges that pain is a disability when pain reaches the level of functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Moreover, the examiner did not consider or address the Veteran’s competent statements regarding instances of running, carrying heavy objects, falling, and wearing heavy boots throughout service indicating an in-service incurrence of back injuries. See September 2015 Notice of Disagreement. The Board acknowledges that the Veteran is competent to report his first-hand experiences in service along with the onset and continuity of his symptomatology. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board notes that the Veteran reported that his back condition was aggravated during his service. See September 2015 Notice of Disagreement; January 2016 VA Form 9. Accordingly, the Board finds that there is a question as to whether the Veteran had a pre-existing lumbar spine condition that was aggravated by his service. The Board also notes that after the October 2019 opinion was issued, VA received additional medical records from the Veteran’s private medical providers. Consequently, these records were not considered by the October 2019 examiner and the RO did not request an addendum opinion after receipt of these records. In light of the above, the Board finds that the October 2019 opinion is inadequate to ascertain the nature and etiology of the Veteran’s current lumbar spine disability and that an addendum opinion must be obtained on remand. 2. Whether the reduction of the rating for the Veteran’s left (major) forearm post-traumatic median neuropathy from 50 percent to 30 percent effective February 1, 2016, was proper is remanded. In the Board’s September 2018 decision, the Agency of Original Jurisdiction (AOJ) was instructed to issue a Statement of the Case (SOC) regarding the Veteran’s claim to reinstate his 50 percent disability evaluation after said evaluation was reduced to 30 percent. Additionally, the AOJ was instructed to notify the Veteran of his appeal rights and that he must submit a timely substantive appeal. In June 2020, a Supplemental Statement of the Case (SSOC) was issued; however, the Veteran was not instructed as to how to file a substantive appeal or his appellate rights to this matter. Furthermore, the Veteran was not provided the opportunity to request a hearing before the Board regarding this issue. A remand by the Board confers on claimants, as a matter of law, the right to compliance with the remand orders and on the VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). Because the AOJ did not substantially comply with the Board’s remand orders to instruct the Veteran as to how to file a substantive appeal, the Board finds that this issue must be remanded. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran’s award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All outstanding medical treatment records associated with the Veteran’s Reserve and National Guard service, if not previously obtained, should also be affiliated with the claims file. 2. Then, forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of any and all lumbar spine disorder(s) attributable to the Veteran. The clinician must note review of the claims file. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. (a) The clinician should identify any and all lumbar spine condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. (c) For each condition so identified, the clinician opine whether there is clear and unmistakable (i.e., medically undebatable) evidence that the Veteran had a lumbar spine condition that existed prior to active duty service, ACDUTRA, and/or INACDUTRA. If the clinician answers in the affirmative, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that (i) there was not increased in disability during active duty service, ACDUTRA, and/or INACDUTRA, or (ii) that any increase in disability was due to the natural progress of the preexisting condition. In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s post-service VA medical records; (iii) The Veteran’s post-service private medical records; and (iv) The Veteran’s competent lay statements regarding his first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s lumbar spine condition(s) is/are less likely than not due to or aggravated by his active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder(s). The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. (Continued on the next page) 3. Issue to the Veteran a Statement of the Case which addresses the issue of whether the reduction of the rating for the Veteran’s left (major) forearm post-traumatic median neuropathy from 50 percent to 30 percent effective February 1, 2016, was proper. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal to receive appellate review of that claim. If a timely substantive appeal is received, return that claim to the Board. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.