Citation Nr: 21022051 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-14 703 DATE: April 14, 2021 REMANDED Entitlement to service connection for lumbar spine condition is remanded. REASONS FOR REMAND The appellant is a Veteran who served in the Navy Reserves (and had verified periods of active service from January 1957 to January 1959, and from December 1960 to December 1962). This matter is before the Board of Veterans’ Appeals (Board) on appeal from the March 2018 Department of Veterans Affairs (VA) rating decision. In June 2019 and June 2020 this matter was remanded for additional development. The June 2019 Board remand directed development for a VA examination of the Veteran to obtain an adequate medical advisory opinion. The examiner was directed to specifically address: 1) the Veteran’s lay statements, 2) a December 2018 notice of disagreement and May 2019 substantive appeal, 3) the May 1958 Service Treatment Records (STRs) notation showing a complaint and treatment for a sore back; and 4) 1991 private treatment records. In the June 2020 Board remand, it was noted that the December 2019 provider of the examination conducted in response to the Board’s early remand had not complied with the June 2019 remand directives by failing to adequately discuss the May 1958 STR and the Veteran’s lay statements noting that he continued to experience pain after his injury in-service, with the pain recurring periodically after the injury (noting that the December 2019 rationale showed that the examiner relied on the lack of evidence in the STRs to support a negative opinion and did not adequately consider the Veteran’s lay statements regarding symptomatology in service and continued symptomatology postservice, as the Board’s prior remand directed. The issue was remanded for an opinion in compliance with the Board’s June 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2020 new VA medical opinion received in response, the consulting provider opined that the current back disability was less likely than not incurred or caused by the claimed in-service injury, event, or illness (noting that there was no further evidence of treatment in service after the May 1958 incident suggesting acute self-limited process, and that all noted exams from 1960 to 1963 were negative for back complaints or a chronic back condition, confirming acute self-limited nature of May 1958 incident. The provider did not address, as was requested, the Veteran’s lay statements describing his lumbar spine injury sustained lifting heavy barrels during service, his lay statements reporting recurring pain following the incident in service, or his lay statements regarding hesitation to report ongoing pain due to concern regarding employment. In essence, the July 2020 VA opinion-provider, like the December 2019 examiner, relied on the lack of evidence documented in the STRs to support a negative opinion and did not adequately address the Veteran’s lay statements. A medical opinion based solely on the absence of documentation in the STRs or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006). Consequently, the medical evidence obtained on remand remains non-compliant with Board remand instructions. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Accordingly, while the Board finds the additional delay inherent with yet another remand regrettable, the Board that another remand to ensure compliance is necessary. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). The AOJ should be aware that this case has now been remanded by the Board three times. The case has been advanced on the Board’s docket based on the Veteran’s age. Expeditious treatment and substantial compliance with remand directives are required. The matter is REMANDED for the following: Obtain an adequate (fully compliant with instructions) addendum medical advisory opinion regarding the etiology of the claimed lumbar spine disability. The Veteran’s claims file should be forwarded to an appropriate clinician (in orthopedics) for review. The opinion should respond to whether it is at least as likely as not (a 50 percent or greater probability) that the claimed lumbar spine disorder had onset in, is due to reported injury therein, or is otherwise etiologically related to, the Veteran’s active duty service. The rationale provided must specifically address the following: 1) the Veteran’s lay statements describing a lumbar spine injury sustained lifting heavy barrels in service; 2) his lay statements reporting recurring back pain following the incident inservice; and 3) his lay statements indicating he was hesitant to report his recurring back pain complaints due to concern regarding employment. All opinions must include a complete explanation of rationale with citation to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate 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.