Citation Nr: 21032889 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 10-14 378 DATE: May 28, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Introduction The Veteran served honorably on active duty in the United States Navy during the Peacetime and Gulf War Era, from December 1976 to November 1985 and from October 1986 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2019, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision vacating and remanding the Board's September 2017 decision denying the Veteran's claim. The Board subsequently remanded the matter pursuant to the Court's Memorandum Decision in November 2019. When this matter returned to the Board most recently in July 2020, it was again remanded for additional development. The additional development has been conducted, and the matter returns to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds remand is again required to ensure substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. As noted in the Board's July 2020 remand, "this matter has been remanded several times by both the Board and the Court due to multiple VA examiner's failure to comment on the Veteran's lay statements." Further, the Board's remand determined the January 2020 VA examiner's opinion was also inadequate as it, once again, failed to discuss the Veteran's lay statements as directed. Thus, the matter was remanded for an addendum VA medical opinion, which was rendered in February 2021 (added to claims file March 2021). The VA examiner, based upon a review of the claims file, opined it was less likely than not the Veteran's back disability was incurred in or caused by the claimed in-service injury, event, or illness. For the following reasons, the Board finds the VA examiner's reports and opinions are again inadequate for purposes of determining service connection and, therefore, are also not in substantial compliance with the Board's prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. First, the VA examiner summarily concluded that, "[a]lthough the Veteran reports a history of continued back pain since service, it is unlikely that [his] current back condition is related to the report of back pain since service." However, the Board observes the VA examiner's report is silent regarding such considerations as the nature, severity, initial manifestation, or progression of symptoms. The VA examiner also summarily concluded that, "[i]t is unlikely that the Veteran's report [sic] injuries in 1977 and 1980 would result in spinal stenosis in 2005." Based upon the "it is unlikely" language twice utilized by the examiner, it is unclear whether the correct, at least as likely as not evidentiary standard was properly employed. Next, the VA examiner opined that the Veteran's "current back condition is more likely related to natural wear and tear and associated obesity, which is known to cause degenerative disc disease and spinal stenosis due to increase [sic] stress on the lumbar vertebra." However, the VA examiner's report is silent regarding the Veteran's weight, height, or body mass index and, significantly, is devoid of reference to evidence of record supporting an etiological association between the Veteran's weight and back condition(s). The Board notes VA treatment records do not include obesity among the Veteran's active problems. Nevertheless, the Board finds the VA examiner's opinion regarding causation to be speculative in nature and, therefore, insufficient to allow the Board to make a fully informed decision. Finally, the VA examiner reported that, "[a] review of the [service treatment records (STRs)] shows no history of chronic back pain or severe back injury that can account for the Veteran's current symptoms," and noted the Veteran "denied any history of chronic back pain on separation and denied back pain on examination in 1994." In so doing, and considering the foregoing, the Board finds the VA examiner relied heavily upon silent STRs and a lack of medical treatment shortly after the Veteran's military discharge to base the negative nexus opinion. Based upon the foregoing, the Board finds the VA examiner failed to support the negative nexus opinion with fully articulated rationales based upon medical principles, supporting data, and sound reasoning in relation to the pertinent lay and medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the matter is REMANDED for the following actions: Schedule the Veteran for an in-person VA examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's back condition(s). **If an in-person VA examination is not feasible, alternative means of conducting the examination must be employed, such as via telehealth examination with a complete records review. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as in-service events and observable pre- and post-discharge symptomology and functional limitations. All pertinent symptomology, including when initially manifested and any progression, must be reported in detail. Any indicated studies must be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's back condition(s) is due to, related to, or otherwise etiologically associated with his active duty service. In offering the above opinions, the examiner must consider and discuss as necessary all pertinent lay and medical treatment and examination evidence of record including, but not limited to, the Veteran's July 2010 and March 2021 statements. (Continued on the next page) A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record, must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.