Citation Nr: 21041043 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-16 868 DATE: July 7, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1978 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. In April 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In November 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. Thereafter, by a September 2020 decision, the Board denied service connection for disabilities of the low back, both knees, and hallux valgus and hallux rigidus of the right foot. The Veteran appealed the Board's September 2020 decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2021 order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision to the extent that it denied service connection for a low back disability and remanding that claim for action consistent with the JMPR. The appeal as to the remaining issues was dismissed. Entitlement to service connection for a low back disability is remanded. The Veteran has contended that he injured his back during service. He has also reported, to include at his April 2019 hearing, that he has had recurrent back pain since the time of his separation from service. Further, he testified that he injured his back in service emptying heavy sacks from pallets, and provided details thereof. In the JMPR filed with the Court, the parties to the appeal agreed that a December 2019 VA examination report relied upon by the Board was inadequate. Specifically, the parties agreed that the VA examiner relied on the lack of evidence of a low back disability in the service treatment records, and failed to adequately consider the Veteran's lay statements that he suffered a low back injury during service and that his low back hurt thereafter. The parties agreed that a remand was required for a VA medical opinion that contained adequate rationale, without considering lack of evidence in the service treatment records, and with adequate consideration of lay statements. As the Court has directed the Board to take action consistent with the JMPR, it is bound by the parties' agreement relative to the adequacy of the December 2019 VA examination and the need for a new examination/opinion in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (the Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). Further development is required. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed, arrange to have the Veteran scheduled for an examination of his low back. The examiner should review the record. All indicated tests should be conducted and the results reported. Following evaluation of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any low back disability found to be present was incurred in or is otherwise the result of active service. The examiner opinion should reflect adequate consideration of the Veteran's account of having continuous back pain since lifting pallets and other heavy objects in the Navy, and must not rely upon the lack of findings in the service treatment records. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.