Citation Nr: 21040149 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-03 693 DATE: July 2, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In April 2019 and January 2021 these issues were remanded for additional development. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. Regarding the Veteran's claimed low back disability, as noted above, the Board previously remanded this matter in April 2019 and January 2021 for further development. In its January 2021 remand, the Board indicted that the Veteran should be scheduled for a new examination to determine the nature and etiology of any low back disability as a VA examination in November 2019 did not adequately address the Board's concerns nor discuss the Veteran's contention that the low back condition was related to an in-service fall, lifting heavy items, and running with full gear. The Board specifically found that the November 2019 VA examiner provided a conclusory statement indicating there was no evidence in the service treatment records (STRs) to support the Veteran's claim and cited a March 2009 physical therapy treatment record, wherein a [post-military, work-related] back injury was documented, as evidence that the back conditions had no nexus to service. Per the January 2021 Board remand instructions, a VA examiner, a nurse practitioner, conducted a records review in March 2021. The VA examiner concluded that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that no chronic diagnosis for a low back condition was diagnosed during the Veteran's active duty and as a result, the Veteran's current mild degenerative joint disease of the lumbar spine was most likely a natural aging process. The examiner noted that a 1977 report of examination showed no back or hip complaints and that while a 1999 treatment note reported back pain with a reference to prior back pain, it was made in the setting of working as a commercial fisherman. The Board notes that while the March 2021 VA examiner opined that the Veteran's low back disability was less likely than not related to the Veteran's service, the VA examiner, despite noting that no chronic diagnosis for a low back condition was diagnosed during the Veteran's active duty and the Veteran's current mild degenerative joint disease of the lumbar spine was most likely a natural aging process, did not specifically address the Veteran's contentions that his low back disability was related to an in-service fall, lifting heavy items, and running with full gear. As noted by the Veteran's representative in a June 2021 Appellant's Brief, while the March 2021 VA examiner found that there was no diagnosis for a chronic back disability in service, in February 1973 the Veteran was involved in a motor vehicle accident where he was treated for neck pain and abrasions on his right thigh, right hip and cervical spine. Additionally, the Veteran's representative noted that despite the January 2021 Board remand instructions, the March 2021 VA examiner did not specifically address the Veteran jumping from an 18-wheel fuel truck, routinely lifting heavy items and frequently running in full gear during his service. Thus, the March 2021 opinion also does not adequately address whether the Veteran's current low back disability was related to service to include as due to an in-service fall, lifting heavy items, and running with full gear in service as instructed by the April 2019 and January 2021 Board remand instructions. As a result, there has not been compliance with the Board's April 2019 and January 2021 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, this issue is once again being remanded to ensure compliance with the Board's April 2019 and January 2021 remand directives in order to determine whether the Veteran has a current low back disability that is the result of his service. Accordingly, the Board finds that a new VA examination report is needed in accordance with the Board's April 2019 and January 2021 directives cited herein to adequately address the Veteran's contentions that his current low back disability is related to service to include as due to an in-service fall, lifting heavy items, and running with full gear in service. Regarding the Veteran's claim for service connection for a left hip disability, in its January 2021 remand, the Board indicted that the Veteran should be scheduled for a new examination to determine the nature and etiology of any left hip disability as a November 2019 VA examiner provided a conclusory statement to support the determination that the condition was not related to military service as the examiner merely noted a lack of treatment for a hip condition in the STRs and one reference in a July 2017 VA treatment record noting back and hip pain had increased. Per the January 2021 Board remand instructions, a VA examiner conducted a records review in March 2021. The VA examiner concluded that it was less likely than not that the Veteran's left hip disability was incurred in or caused by the claimed in-service event, injury or illness as the examiner noted that no chronic diagnosis for a left hip condition was diagnosed during the Veteran's active duty. However, the opinion did not adequately address the Veteran's contentions that his current left hip disability is related to service to include as due to an in-service fall, lifting heavy items, and running with full gear in service. Finally, the Board also again notes that further development and adjudication of the Veteran's claim for service connection for a lumbar spine disability may provide evidence in support of his claim for a left hip disability as the Veteran again contends that his left hip disability is due to his service to include as secondary to a lumbar spine disability. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Return the claims file to the VA examiner that examined the Veteran in March 2021. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. The examiner should opine as to whether the Veteran's lumbar spine disability is related to an in-service injury, event, or disease, including the Veteran's contentions of injuring his low back due to in-service jumping from an 18-wheel fuel truck, routinely lifting heavy items and frequently running in full gear during his service. The examiner should also opine as to whether the Veteran's left hip disability is related to an in-service injury, event, or disease, including the Veteran's contentions of injuring his low back due to in-service jumping from an 18-wheel fuel truck, routinely lifting heavy items and frequently running in full gear during his service. In formulating the opinion, the examiner should specifically address the claimed in-service jumping from an 18-wheel fuel truck, routinely lifting heavy items and frequently running in full gear during his service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has a current left hip disability that is caused or aggravated by his lumbar spine disability. If the examiner finds that the Veteran has a left hip disability that has been permanently aggravated/worsened by his lumbar spine disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder. 3. Ensure that the examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.