Citation Nr: 21022677 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-53 397 DATE: April 19, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1956 until his honorable discharge in April 1959; from July 1959 until his honorable discharge in July 1962; and from May 1967 until his honorable discharge in September 1973. The Veteran also had service in the Michigan Army National Guard and in the United States Army Reserves. 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). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Cleveland, Ohio. A transcript of the hearing has been associated with the record on appeal. In February 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to afford the Veteran a VA examination. A VA examination took place in June 2019. In September 2019, the Board denied the Veteran’s claim for entitlement to service connection for lumbar spine strain with arthritis. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (Motion), the Court remanded the case to the Board for readjudication and to obtain an adequate VA examination. The Board remanded the claim to the RO in December 2020 to obtain updated VA treatment records and a VA examination. A VA examination took place in December 2020, before VA treatment records were updated in the file. The RO readjudicated the claim and granted service connection for a lumbar strain, but not degenerative arthritis of the spine, lumbar intersegmental dysfunction, and idiopathic scoliosis. The claim has returned to the Board and the Veteran’s representative has argued that these lumbar spine disabilities should be awarded service connection due to aggravation from the lumbar spine strain. Entitlement to service connection for a lumbar spine disability. The December 2020 Board remand instructed the RO to “[o]btain all outstanding VA treatment records, including but not limited to VA treatment records from Toledo VA Clinic from February 19, 2020 to present.” The Board then instructed the RO to obtain an addendum VA opinion “[a]fter any additional records are associated with the claims file…” The RO obtained the addendum VA opinion before requesting records from the Veteran and associating the updated records with the file. As a result, unfortunately, there has not been substantial compliance with the Board’s previous remand directives, additional development is required, and the claim must be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO is directed to obtain updated, relevant VA treatment records and then an addendum VA opinion. The RO must also assist the Veteran in developing the record. In addition to compliance with the remand instructions, the Veteran’s representative has put forth a theory of entitlement that has not been addressed. In their most recent brief, the representative argued that the Veteran’s service-connected lumbar spine strain aggravated his other lumbar spine disabilities. The Board lacks the medical evidence to decide the claim. The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As such, the claim must be remanded to address whether the Veteran is entitled to secondary service connection. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, including but not limited to VA treatment records from Toledo VA Clinic from February 19, 2020 to present. If no updated VA treatment records regarding the Veteran’s lumbar spine disability can be located, a negative finding should be included in the file. 2. After the above development has been completed, obtain an addendum opinion regarding the etiology of the Veteran’s lumbar spine disability to include (1) degenerative arthritis of the spine, (2) lumbar intersegmental dysfunction, and (3) idiopathic scoliosis as secondary to a lumbar spine strain from a VA examiner. The entire claims file and a copy of this remand must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the lumbar spine disability, to include degenerative arthritis of the spine, lumbar intersegmental dysfunction, and idiopathic scoliosis, is secondary to a service-connected lumbar spine strain. The examiner must specifically address the following: (a.) Is the Veteran’s spine disability (to include degenerative arthritis of the spine, lumbar intersegmental dysfunction, and idiopathic scoliosis) at least as likely as not caused by his service-connected lumbar strain? (b.) Is the Veteran’s spine disability (to include degenerative arthritis of the spine, lumbar intersegmental dysfunction, and idiopathic scoliosis) at least as likely as not aggravated (worsened in severity) by his service-connected lumbar strain? (c.) Finally, to the extent not addressed above, please address the extent to which the Veteran’s low back symptoms resulting from non-service-connected conditions can be separated from the symptoms he experiences due to his service-connected lumbar strain. 3. After, readjudicate the Veteran’s claims. If the claims remain denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration.  M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.