Citation Nr: 21040114 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-30 374 DATE: July 2, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1992 to January 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Board denied entitlement service connection for a lumbar spine disability. The Veteran appealed the Board's decision denying entitlement to service connection for a lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Court, in a Memorandum Decision, overturned the Board's decision, and it remanded the claim to the Board. Pursuant to the February 2019 Memorandum Decision, the Board remanded the appeal for additional development in an October 2020 Board remand. Regrettably, more development is still necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that her low back disability was caused by a 1993 in-service motor vehicle accident. At the outset, the Board acknowledges the argument put forth by the Veteran's representative in the May 2021 Informal Hearing Presentation that the VA examiner who provided the January 2021 and February 2021 VA opinions was not competent to do so because the "non-physician examiner, had no particular expertise, experience in, or training or competence in commenting on orthopedic disorders" and that the absence of competence rendered the January 2021 and February 2021 conclusions inadequate. Review of the Board's October 2020 remand directives do not indicate the VA examination was to be conducted by a specific medical specialist. On the contrary, the fact that the examiner was a certified physician assistant (PA-C) does not, by itself, render the examiner unqualified or render the examination inadequate. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant). In this instance, the Veteran's representative has not raised specific challenge as to why the examiner, who happened to be a PA-C, was not qualified to provide an opinion regarding the Veteran's low back. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Given the lack of specific reason to question the competency of the examiner, the Board is not persuaded by the contentions set forth by the Veteran's representative and finds the certified physician assistant who completed the January 2021 and February 2021 VA addendum opinions to be competent to render a medical opinion in this instance. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Nonetheless, the Board remands this appeal for failure to substantially comply with the October 2020 remand directives. In October 2020, the Board remanded the case for a new VA addendum opinion. On remand, the VA examiner was specifically asked to address a May 1995 chiropractic record, a June 2011 VA treatment record, and the Veteran's October 2011 lay statements. The October 2020 Board remand specifically asked that on remand a VA examiner state whether a nexus between the Veteran's lumbar spine disability and service is medically consistent with the information provided by the Veteran in the October 2011 statement. The January 2021 and February 2021 VA opinions did not address this remand instruction and therefore they are incomplete. Moreover, the January 2021 VA addendum opinion did not address the May 1995 chiropractic record, June 2011 VA treatment record, or the Veteran's October 2011 lay statements as requested in the October 2020 Board remand. An addendum VA opinion was obtained in February 2021. However, the February 2021 VA addendum opinion simply listed these records and a summary of their contents under an "additional evidence" section. The February 2021 VA addendum opinion did not state whether the May 1995, June 2011 VA treatment record, and October 2011 lay statements impacted the VA Examiner's opinion or whether the opinion remained the same even after consideration of these records. Lastly, the Board again recognizes that the October 2020 Board remand noted that the credibility of the Veteran's lay statements has not yet been determined by the Board which is a departure from the August 2019 Board remand which described the Veteran's October 2011 lay statement as competent and credible. Due process requires fair notice and an opportunity to respond when the Board purports to reverse prior assertions or impressions that evidence was satisfactory to establish a fact necessary to the claim. See Smith v. Wilkie, 32 Vet. App. 332, 337-39 (2020); see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993) ("[t]he entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). The Board finds that this remand constitutes the notice required by caselaw, and the Veteran shall have an opportunity to respond upon remand, if he deems response is warranted. Accordingly, remand is required in order to comply with the remand instructions contained in the October 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2021 VA examiner, or another appropriate clinician, to determine the nature and etiology of the Veteran's lumbar spine disability. The claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. Following a review of the claims file, the VA examiner should indicate whether it is at least as likely as not that the Veteran's lumbar spine disability had its onset in or is otherwise etiologically related to service, to include as a result of the 1993 in-service motor vehicle accident. In providing the foregoing opinion, the examiner must address: a) the June 2011 VA treatment note containing an assessment of low back pain; b) the May 1995 chiropractic opinion that the Veteran's back condition was the result of injuries sustained during her November 1993 motor vehicle accident; and c) the October 2011 statement from the Veteran providing a report of experiencing chronic back pain since her in-service motor vehicle accident With respect to the October 2011 statement, the VA examiner must state whether a nexus between the Veteran's lumbar spine disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the VA examiner to consider the history she provided, the Board is not at this time making an assessment of the credibility of her statements). A complete rationale should be provided for all opinions given. If the VA examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.