Citation Nr: 21029632 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-37 472 DATE: May 14, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty for training in the United States Army from October 1983 to January 1984 and on active duty in the United States Army from September 1986 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge (VLJ) in November 2017. A copy of the transcript is associated with the record. When this case was last before the Board in December 2020, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the Veteran's lower back disability; thus, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board's December 2020 remand, the RO obtained an addendum medical opinion regarding the etiology of the Veteran's lower back disability, specifically to address the Veteran's and her sister's lay statements regarding the onset of the Veteran's disability. Unfortunately, in considering the lay statements, the clinician stated the lay reports were not supported by medical evidence and are contradicted by the lack of medical evidence. The clinician fails to provide an adequate rationale for this opinion and fails to consider the lay evidence in his opinion as directed by the Board's remand. The Board finds the opinion of the January 2021 clinician to be inadequate, insofar as it relies upon the absence of medical evidence to support a negative nexus opinion and, further, as it fails to assume the competency of lay persons to relay observable symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing, essentially, that an examination was inadequate where the clinician relied on the absence of medical records to provide a negative opinion); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must ensure compliance with the terms of its prior remand directives. Therefore, another remand is required in order to procure a medical opinion, supported by a sound rationale, that adequately addresses the lay statements concerning the Veteran's continuity of symptomatology. The matter is REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate clinician for review and the opinion sought. Schedule the Veteran for a VA examination if necessary. After a review of the file, the clinician is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability (to include degenerative arthritis and spondylolisthesis) had its onset during, or is otherwise etiologically related to her active duty military service. In providing this opinion, the clinician should address the following: a. The Veteran's lay statements regarding the onset of her back pain while in service and why reports of in-service back pain are not in her records, provided in Correspondences received September 2013 and October 2019. b. The Veteran's testimony during the November 2017 hearing regarding a fall that occurred in service causing her back pain, and c. Lay statements provided by the Veteran's sister in July 2015 regarding the onset and continuity of symptomatology of the Veteran's back pain. It should be noted that lay persons are competent to attest to observable symptomatology. The clinician's attention is directed to the statements of the Veteran and her sister, regarding the continuity of symptomatology the Veteran has experienced since military service. The clinician is reminded that an absence of prior medical documentation of symptoms or treatment is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and an in-service event or injury. Finally, the clinician must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. (Continued on the next page) 2. After completing the requested action, and any additional action deemed necessary, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and given the opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.