Citation Nr: 22016948 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 11-21 130 DATE: March 23, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1972 to December 1974.This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2016. In April 2016, the Board remanded the claims of entitlement to service connection for a lumbar spine disability and a headache disability and denied the claims in an October 2018 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court issued an order that vacated the Board decision, in part, and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). The Board remanded the appeal in March 2020 and August 2021. Notably, during the pendency of this appeal, a January 2022 rating decision awarded service connection for headaches. This issue is accordingly not in appellate status. As an initial matter, the Board finds that the Veteran's statements regarding continuous back pain since service are not credible, as contemporaneous treatment records contradict his reports. In a December 1988 private treatment record, the Veteran reported waking up with back pain after a lot of heavy lifting at work the previous day and specifically denied any prior history of back pain. In a March 1989 private treatment record, the Veteran presented with back pain and reported injuring his back at work while trying to lift a pump. An August 2006 VA treatment record notes the Veteran sustained multiple injuries at work, including three back injuries while performing heavy lifting duties, and notes the Veteran's occupation as a welder/pipefitter/instrument mechanic since 1975. In an October 2007 VA treatment record, the Veteran stated that he recently started to have back pain beginning in May 2007. Therefore, the Board more probative value to the contemporaneous treatment records and finds the Veteran's more recent statements regarding continuous back pain since service to be not credible. Moreover, these documented post-service injuries demonstrate a superseding cause for the Veteran's current back disability. The Board recognizes that the analysis above is a departure from the March 2020 and August 2021 remands, since it included a directive that the VA examiner should assume as true the Veteran's reports of continuous back pain following an in-service injury, which amounted to a favorable credibility finding. Due process requires fair notice and an opportunity to respond when the Board purports to reverse prior assertions or impressions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim. See Smith v. Wilkie, 337-39 (2020); see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993).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. A VA opinion was obtained in January 2022. However, the examiner did not provide a discussion of whether a nexus the Veteran's back disability and his in-service back injury was "medically plausible," as specifically requested by the Board in relation to the Veteran's reports of experiencing pain from low level helicopter drops and from simulated jumps. Thus, an addendum opinion is needed on remand to ensure substantial compliance with the prior Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Obtain an addendum opinion from the January 2022 VA examiner (or other examiner, if unavailable) regarding the etiology of the Veteran's back disability. The entire claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. Following a review of the claims file, the examiner should discuss and assume as true the Veteran's reports of in-service back pain from low-level helicopter drops and from simulated jumps onto a trampoline and sandbags (see November 2009 VA Form 21-4138 and Board Hearing Transcript at 19-20) and determine, based on the same, whether a nexus between the Veteran's diagnosed back disabilities, including spondylosis, degenerative arthritis, spinal stenosis, spinal disc herniation, and scoliosis (see June 2021 VA examination report) and service is "medically plausible." Please explain why or why not, conceding in service undocumented back pain as described above, and do not rely on lack of documentation in the service records. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.