Citation Nr: 21032621 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-01 899 DATE: May 27, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army and the U.S. Marine Corps from August 1981 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing in September 2017. A transcript of the hearing has been associated with the claims file. The Veterans' Law Judge who held the hearing is no longer employed at the Board and in October 2019 correspondence the Veteran was notified and elected to not have another Board hearing. Previously, the Board denied service connection for a low back disorder in February 2018. A December 2018 order of the United States Court of Appeals for Veterans Claims (Court) implemented a December 2018 Joint Motion for Partial Remand (JMPR), vacating and remanding the February 2018 Board decision as to the Veteran's claim for entitlement to service connection for a low back disorder. As such the issue of entitlement to service connection for a low back disorder is again before the Board. Most, recently the Veteran's claim was before the Board in December 2019 and was remanded for additional development. However, as discussed below the Board's prior remand directives have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a low back disorder The Veteran contends that service connection is warranted for his current low back disorder as caused by service. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for additional development and to obtain a supplemental VA examination. Previously, the claim was before the Board in December 2019 and as part of the development associated with the prior remand the Veteran was afforded a VA examination in February 2020. The examiner found that the Veteran's current low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted an in-service injury in 1983 and in-service reports of low back pain in 1989. The examiner noted that imaging of the lumbar spine in 1989 was normal and thus the examiner found that there was no documentation of chronicity and continuation of an injury that occurred in 1983 and 1989. Then as to an in-service motor vehicle accident in February 1990 the examiner noted that it was unclear whether the Veteran was on active duty status; however service records show active duty until March 26, 1990. The examiner failed to fully address direct and presumptive service connection as to the Veteran's February 1990 motor vehicle accident. Further, the examiner noted a review of the service and medical treatment records but failed to address the lay statements of record including the Veteran's and his wife's and daughter's lay statements noting ongoing low back pain and symptomology since service. In his initial claim, the Veteran reported that the disability began in 1992 with treatment beginning in 2005 but later reported an injury in 1983 and that he first sought treatment for low back symptomology in 1993, but the treating doctor has since died and the records have been destroyed. As such a remand is warranted for a supplemental VA examination. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's low back disorder and whether: (a). Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current lumbosacral strain and degenerative arthritis of the spine is caused by an in-service injury, event or disease Including an in-service accident in August 1983, injury in October 1989 and/or motor vehicle accident in February 1990? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbosacral strain and degenerative arthritis of the spine (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in February 2020 noting that that the Veteran's current low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the in-service injury in 1983 and in-service reports of low back pain in 1989. The examiner noted that imaging of the lumbar spine in 1989 was normal and thus there was no documentation of chronicity and continuation of an injury that occurred in August 1983 and a basketball injury in 1989. The examiner failed to address whether the Veteran's in-service motor vehicle accident in February 1990 was related to service. Further, attention is invited to the Veteran's service treatment records (STRs) which note an August 1983 injury where the Veteran was hit by a truck in the motor pool and reported muscle stiffness and numbness. STRs also the Veteran was seen in October 1989 for numbness and tingling in his lower back and left leg. Then in February 1990 STRs note the Veteran was seen after a motor vehicle accident with reports of numbness and lower back pain with a probable paraspinal muscle strain. In addition, attention is invited to the Veteran's September 2017 testimony and associated lay statements from himself, his wife and daughter noting that since service he has experienced ongoing low back pain and symptomology that has worsened over time. (continued next page) Additionally, the Veteran has consistently reported first seeking treatment post-service in 1993 for his low back pain and symptomology, as such was when he first obtained health insurance and had access to medical care, but the treating doctor has died and the records destroyed. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.