Citation Nr: 21021957 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-18 773 DATE: April 14, 2021 REMANDED Entitlement to service connection for degenerative disc disease, claimed as low back disability, is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) with the Army from January 30 to June 10, 1967. The Veteran served with the Army National Guard from May 1966 to May 1972. The Veteran also served with the Air National Guard from August 1973 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2019, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for degenerative disc disease, claimed as low back disability, is remanded. A January 2019 Board decision remanded the claim of service connection for a low back disability and directed the Agency of Original Jurisdiction (AOJ) to obtain records of the Veteran’s claimed inpatient treatment at Fort Sam Houston in 1967. After the completion of the aforementioned development, the AOJ was directed to schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s low back disability, and to provide an opinion as to whether the condition is related to the Veteran’s service, to include his reported low back sprain after emptying a garbage can. 01/03/2019, Remand BVA. A VA examination was conducted in September 2019. 09/23/2019, C&P Exam. However, the records of the Veteran’s claimed inpatient treatment at Fort Sam Houston in December 2019. 12/12/2019, STR – Medical. The VA examination was conducted before the AOJ obtained the Veteran’s records of pertinent medical treatment. Because these medical records were not considered by the examiner, the Board finds the September 2019 VA examination to be incomplete. Subsequently, an April 2020 VA examination noted diagnoses of degenerative arthritis of the lumbar spine, degenerative disc disease lumbar spine, sciatic lumbar radiculopathy of the bilateral lower extremities, intervertebral disc syndrome, and spinal stenosis. The Veteran reported that the onset of his lower back pain occurred during active service and that the condition has since increased in severity. The examiner opined that the Veteran’s lower back conditions are less likely than not related to his period of active service. The examiner acknowledged that medical records indicate an acute lumbosacral strain during service in 1967. However, the examiner found that there is no evidence of a chronic condition or continuity of care following the acute lumbosacral strain. The examiner relied service treatment records showing that the Veteran denied recurrent back pain during several examinations between 1973 and 1990 in support of the opinion. 04/07/2020, C&P Exam. In a March 2021 appellate brief, the Veteran asserted that he was incentivized to remain silent on his lower back conditions due to a fear of career setback or loss of retirement benefits, as well as a fear of appearing weak or cowardly. The Veteran also contended that he did not receive appropriate training or follow-up treatment after his in-service incurrence of an acute lumbosacral strain in 1967. And, he asserted that the lack of training or corrective actions to further prevent injury may have caused his acute low back pain to become mechanical low back pain. The Veteran further cited medical literature from the Cleveland Clinic in support of his contentions. 03/19/2021, Appellate Brief. The Board finds the Veteran’s lay assertions regarding his masking of lower back pain during active service to be credible. Neither the September 2019 VA examination nor the April 2020 VA examination addresses the Veteran’s theory of entitlement that his acute lumbosacral strain in 1967 developed into mechanical low back pain due to a lack of appropriate training or corrective actions to further prevent injury. Additionally, the April 2020 VA examiner was unable to consider the Veteran’s credible lay assertions regarding his masking of lower back pain during active service. Accordingly, the Board finds the September 2019 and April 2020 VA examinations are incomplete to adjudicate this issue at this time. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, obtain an opinion from an appropriate examiner as to whether it is at least as likely as not (50 percent probability or greater) that the current low back conditions are related to an in-service injury, event, or disease. The need for a physical examination is left to the discretion of the examiner. In offering the opinion, the examiner is asked to consider the Veteran’s lay assertions regarding his masking of lower back pain during active service, as well as his assertion that the lack of training or corrective actions to further prevent injury may have caused his acute low back pain to become mechanical low back pain. The examiner must also consider the medical literature from the Cleveland Clinic cited by the Veteran. See 03/19/2021, Appellate Brief. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.