Citation Nr: 21027287 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-19 200 DATE: May 5, 2021 REMANDED The service connection claim for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2018, the Veteran and his spouse, L.P., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In June 2019 and November 2020, the Board remanded the case to the RO for further evidentiary development. However, the Board regrets further delay because additional developments are necessary before it may render a decision on this issue on appeal. The last time this matter was remanded, in November 2020, the Board noted that a January 2020 medical opinion did not comply with the prior, November 2019 Board remand. Thus, it found that this opinion lacked the supporting analysis necessary for the Board's reliance upon it. Thus, the matter was remanded again for an adequate addendum opinion. Thus, in December 2020, the AOJ obtained a new medical opinion. In this December 2020 VA opinion, a VA examiner opined that the Veteran's lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As part of the rationale for this opinion, the VA examiner reasoned that there is no evidence of a back condition in service or at separation and that this is contrary to the Veteran's claims and a February 2020 private opinion. He also reasoned that the February 2020 private opinion is the first evidence of care of the Veteran's back conditions. However, to the contrary, evidence of the Veteran's care for a back condition pre-dates the February 2020 private opinion, and dates as far back as March 2014, or possibly, March 2013. See e.g. March 2013 Primary Care Note (reporting that he gets joint pain, and that taking Diclofenac helps); see also March 2014 Nursing Note (reflecting that the Veteran complained of having acute back pain). Additionally, and without addressing the Veteran's specific contentions, the VA examiner also reasoned, broadly, that though "the [Veteran] described injuries or alluded to injuries in service . . . there is no medical evidence to support the claim." Although the VA examiner considered and addressed the February 2020 private opinion, and to a limited, broad extent, the Veteran's lay statements, the VA examiner did not address all of the probative evidence that the November 2020 remand directives specifically identified and requested, for consideration and discussion. For example, the VA examiner did not address the October 1969 service treatment record, which indicated that the Veteran fell from climbing a ladder and passed out, for purposes of clarifying or explaining whether the Veteran could have sustained a back injury from this accident. As another example, the VA examiner did not address or consider lay statements about continuing back problems, from the Veteran's spouse. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, as the December 2020 VA opinion is not in substantial compliance with prior remand directives, a remand is required for compliance with the prior Board remand directives, and specifically, obtaining a supplemental opinion to clarify the etiology of the Veteran's back disability. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion for a clarification of the Veteran's back disability. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. For each of the Veteran's back disability, to include lumbar pain and lumbar spine degenerative joint disease, opine whether it is at least as likely as not (50 percent probability or greater) that the back disability is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran's active service. b. In rendering an opinion, the VA examiner should consider all lay statements as evidence, and particularly, he/she must specifically address and discuss the following evidence: i. An October 1969 service treatment record which indicates that the Veteran woke up, feeling thirsty, started to climb a ladder, and when he got to the top, he got dizzy and passed out. ii. The Veteran's December 2018 Board hearing testimony about the incident in which he passed out while he was onboard a naval ship during his active service, falling from a ladder, while climbing from the fourth deck to the second deck. iii. The Veteran's testimony that he has had leg problems since service, including numbness, cramps, and tingling. iv. The December 2018 Board hearing testimony from the Veteran's spouse, L.P., about the Veteran's continued back problems. c. Additionally, in considering all pertinent medical evidence, the VA examiner must specifically address and discuss the February 2020 private medical opinion about the Veteran's lumbar spine disability. In doing so, and with a clear, detailed rationale, the VA examiner must identify and discuss all discrepancies with any findings from this February 2020 private medical opinion. d. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.