Citation Nr: 22017152 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 11-09 356 DATE: March 24, 2022 REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine (claimed as backaches) is remanded. REASONS FOR REMAND The Veteran had active military service from June 1987 to May 1991, including service in Southwest Asia from October 1990 to April 1991. This matter comes to the Board of Veterans' Appeals (the Board) following a May 2009 decision from the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for backaches. The Board previously denied the Veteran's claim for entitlement to service connection for degenerative disc disease of the lumbar spine in March 2020. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (the Court). In a February 2021 Order, the Court entered a Joint Motion for Partial Remand (JMPR) of the parties, vacating the Board's decision as to entitlement to service connection for degenerative disc disease of the lumbar spine and remanding the matter to the Board. The JMPR determined that the Board erred in: (1) failing to consider whether the combat presumption of 38 U.S.C. § 1154(b) applied to the Veteran's claim; (2) failing to address the medical record showing that the Veteran complained of back pain in March 1995; (3) failing to consider whether the Veteran's back condition was complicated by his service-connected posttraumatic stress disorder (PTSD), which was suggested by Department of Veterans Affairs (VA) treatment records ; and (4) failing to consider whether a new VA examination was needed to address the theory of entitlement to service connection on a secondary basis, given the evidence suggesting that the Veteran's back condition was aggravated by his service-connected PTSD. In July 2021, the Board remanded the Veteran's appeal to obtain a new VA medical opinion that considered the evidence addressed in the JMPR. Specifically, the examiner was instructed to consider whether it is at least as likely as not that the Veteran's degenerative disc disease of the lumbar spine: (1) had its onset in or was otherwise incurred in service; (2) manifested to a compensable degree within one year of discharge; and (3) was caused or aggravated by his service-connected PTSD, left shin strain, left lower extremity blood clots, and/or right knee strain. The examiner was also advised that the occurrence of an event in service was established via the combat presumption and was instructed to discuss evidence including: (1) the Veteran's statements that he was jostled in tanks during his service in Southwest Asia; (2) the March 1995 VA treatment record showing complaints of low back pain; (3) the December 2011 VA treatment record in which the Veteran reported back pain since 1991; and (4) the VA treatment record indicating that his back pain was complicated by his underlying PTSD symptoms. Following the Board's July 2021 remand, the Veteran received a new VA examination in August 2021. However, the Veteran contends that this examination was inadequate because the examiner failed to consider the combat presumption as instructed by the Board's remand directives. The Board agrees and concludes that another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the evidence shows that a veteran engaged in combat with the enemy, the combat presumption holds that lay reports will be sufficient to establish the occurrence of an event or injury during such combat so long as the reports are consistent with the circumstances, conditions, or hardships of such service. This is true even where there is no official documentation of the reported incident unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, however, a veteran still must show the presence of a current disability and that a causal relationship exists between the current disability and the in-service injury established by the presumption. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The examiner who proffered the August 2021 VA medical opinion opined that it is less likely than not that the Veteran's current degenerative disc disease of the lumbar spine was incurred in or caused by an in-service event, injury, or disease. His rationale was that the Veteran's service treatment records are negative for any complaints relating to back pain. Problematically, however, the examiner did not consider the combat presumption afforded to the Veteran in this case, nor did he address the Veteran's statements that he was jostled in tanks during his service in Southwest Asia. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall, 11 Vet. App. at 271. As the examiner did not properly consider the combat presumption and the Veteran's lay statements regarding his injury in rendering his opinion, there was not substantial compliance with the Board's July 2021 remand. Accordingly, another remand is necessary to cure this deficiency. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to the August 2021 VA medical opinion. Following review of the claims file, the examiner should address the following: (a.) Is it at least as likely as not that the Veteran's degenerative disc disease of the lumbar spine had its onset during or is otherwise etiologically related to an in-service event, injury, or disease? The examiner must discuss the Veteran's lay statements that he incurred a back injury after being jostled in tanks during his service in Southwest Asia. The examiner is advised that the Veteran served in combat and his statements regarding an in-service occurrence are conceded by virtue of the combat presumption. Therefore, lack of official records of an in-service occurrence is not dispositive in this case and cannot be the basis of a negative nexus opinion. The examiner must provide a rationale for the opinions proffered. Elena Skiouris Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, Associate 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.