Citation Nr: 21030455 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-34 603 DATE: May 19, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from July 1983 to July 1987 and from April 1989 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the matter for further development in June 2019 and July 2020. Entitlement to service connection for a back disability is remanded. Although further delay is regrettable, based upon its review of the Veteran's claim file, the Board finds there is a further duty to assist the Veteran with his claim for a lumbar spine disability. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board remanded the claim in July 2020 to obtain a new VA medical opinion as to the etiology of the Veteran's back disability. Concerning this, previously, a November 2019 VA examiner opined that the Veteran's current back conditions are not related to service but failed to acknowledge the Veteran's asserted symptom history. The Board found that the November 2019 examination was inadequate for failing to acknowledge and consider all the relevant evidence of record, to include lay statements. Unfortunately, this continues to be the case. A new VA examination and a medical opinion was obtained in August 2020. The August 2020 VA examiner stated that "[the] Veteran stated he received care for his back on 26, Apr 1990, however this is subjective. While it is possible he had other injuries during active duty, there is no documentation found in the medical records to include boot camp in 1983, physical training when stationed off the coast of Cuba in 1990, and while loading tires off a truck while stationed in Saudi Arabia in 1991, that mention any back complaints, treatment, or diagnoses." The examiner concluded that "due to lack of objective evidence, it cannot be said that the Veteran's back diagnoses were incurred in or caused by service, or is otherwise etiologically related to the Veteran's military service." Again, the August 2020 examiner primarily based the unfavorable opinion on the lack of documentation of a chronic back condition in the record and neglected to consider the Veteran's statements concerning symptoms experienced in service and continued after service. Here, at the February 2019 hearing, the Veteran asserted that he injured his back in boot camp in 1983, while participating in physical training when he was stationed off the coast of Cuba in 1990, and while loading tires off a truck when he was stationed in Saudi Arabia in 1991. The record also contains statements from him and his wife that he began seeking treatment for back pain in 1994 before eventually self-medicating with over-the-counter pain relievers after treatment did not alleviate his symptoms. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, the VA examiner could have addressed whether the Veteran's claimed symptoms were consistent with the complaints through the years, or whether the complaints are consistent with the current disorder. Instead, the examiners determined, incorrectly, that lack of treatment records are the only evidence which can provide the basis for an opinion concerning etiology. The examiner also did not address the positive nexus opinion from the Veteran's private physician. Concerning this, the private physician stated in November 2017 that "I think that all of these degenerative changes which have been symptomatic since his military days are painful and I think these facet injections with radio frequency ablation may be helpful. Again, his back pain does trace back to his injuries in the military." Therefore, the instructions of the previous remand were not fully complied with, as required by Stegall v. West, 11 Vet. App. 268, 271 (1998) ("RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance."). Consequently, a new medical opinion is required to adequately decide the merits of the claims. The matter is REMANDED for the following actions: 1. Obtain an addendum report to determine the etiology of the Veteran's back conditions. The examiner must be provided access to the claims file and a copy of this remand and must indicate a review of such in the examination report. If examination of the Veteran is necessary, such should be arranged. After review of the claims file, the examiner must provide an opinion as to whether it is at least as like as not (50 percent or greater probability) that the Veteran's back disability was incurred in or is otherwise etiologically related to the Veteran's military service, to include injuring his back while in boot camp in 1983, while participating in physical training when he was stationed off the coast of Cuba in 1990, and while loading tires off a truck when he was stationed in Saudi Arabia in 1991. In rendering the requested opinion and rationale, the examiner must note that the fact that there is no documentation of treatment in service is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. The examiner is advised that the Veteran is competent to report his symptom history (e.g. seeking treatment for back pain in 1994 before eventually self-medicating with over-the-counter pain relievers after treatment did not alleviate his symptoms) and that such reports must be acknowledged and considered in formulating any opinion. If reports are discounted, the examiner should provide a reason for doing so. (Continued on the next page) A complete rationale must be provided for any opinion expressed. 2. After completing the above, readjudicate the claim. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.