Citation Nr: 21042584 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-14 642 DATE: July 13, 2021 REMANDED The claim of entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to November 1971, including in Vietnam during the Vietnam era. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 Department of Veterans Affairs (VA) rating decision. In August 2017, the Veteran testified in support of this claim during a video conference hearing held before the undersigned Veterans Law Judge. In February 2018, July 2019, November 2020 and March 2021, the Board remanded this claim to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to service connection for a back disorder In March 2021, the Board remanded this claim to the AOJ for the fourth time for the purpose of securing an adequate medical opinion. In its remand, the Board clearly instructed the examiner on the information needed for the Board to decide this claim. Astoundingly, the examiner, who had previously offered inadequate opinions, completely ignored the instructions. Equally as surprising, rather than correcting this obviously deficient opinion, the AOJ transferred this case back to the Board, ensuring further delay in the Veteran's case. The examiner's and AOJ's actions in this regard not only disrespect the Veteran, who deserves more competent assistance, but violates Stegall v. West, 11 Vet. App. 268 (1998), necessitating yet another remand. This matter is REMANDED for the following action: 1. Transfer this case to a VA physician (M.D.) who has not previously seen this file for an opinion on the etiology of the Veteran's back disorder. (Do not return this case to N.S., APRN, who has already provided multiple inadequate opinions.) The examiner should review the file and acknowledge the Veteran's following assertions: (a) He developed a back disorder in Vietnam regularly lifting supplies and equipment, including heavy pipe; (b) The disorder was exacerbated by wearing poorly fitted, military-issued boots; (c) While at a firebase in Vietnam, he self-treated his back condition with Darvon, beer and rest as frequently as possible; (d) As the senior man on the night shift and Sergeant of the Guard, he was able to delegate his physical duties to lower ranking soldiers, allowing him to care for himself; and (e) He began seeing a chiropractor for his back not long after leaving service and has since had back problems. The examiner should also acknowledge post-service treatment records showing back treatment beginning in 1979, when the Veteran was 30, and continuing through the 1980s. The examiner should be aware that all prior VA examiners' opinions are incompetent and not probative as they ignore records confirming care between 1972 and 1999, long before the Veteran was 40 years of age. These opinions rule out a relationship between the Veteran's back disorder and service on the basis that degenerative changes like the Veteran's typically occur around 40 years of age. Ignoring these opinions and accepting as competent the Veteran's reports of lay-observable back symptoms, the examiner should offer an opinion with rationale as to whether the Veteran's back disorder is at least as likely as not related to his service. 2. If the examiner returns an opinion that is deficient in any manner (doesn't acknowledge the post-service treatment records noted above, the Veteran's back treatment in his 30s, or his competent lay-observable statements), return the opinion for correction. Do not return this case to the Board until an adequate opinion is secured. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.