Citation Nr: 22018670 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-54 392 DATE: March 30, 2022 REMANDED Entitlement to service connection for a low back disability, including multilevel lumbar degenerative disc disease status post discectomy (DDD) and degenerative joint disease (DJD), is remanded. REASONS FOR REMAND The Veteran had active service from October 1966 to September 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in February 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2019 when it was remanded for additional development. Unfortunately, another remand is necessary as there has not been substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2019, the Board remanded this issue in order to obtain an opinion as to whether the Veteran's back disability was related to service, to include his presumed exposure to Agent Orange. Pursuant to the Board's remand directives, an opinion was obtained in October 2019. The October 2019 examiner gave a negative opinion as to Agent Orange exposure. The Board finds the VA medical opinion to be inadequate because the rationale appears to have been limited to a regulatory provision that does not find the Veteran's back disability, diagnosed as multilevel lumbar DDD and DJD, as a presumptive residual of Agent Orange exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that a Veteran is not precluded from establishing service connection with proof of direct causation). Regarding the February 2017 VA medical opinion of record, the Board finds this opinion is not wholly sufficient. Although the VA examiner referenced a June 1968 service treatment record documenting in-service complaints of low back spasm and impression of low back strain, the examiner did not address the relevance of the Veteran's lay assertions suggesting continuity of symptomatology. In this regard, the Veteran has asserted that his back disability "didn't come from any disease, heavy lifting, or ditch digging, and that he sorted mail for 30 years," thus implying that that he believes that his back disability is related to service. See March 2017 Notice of Disagreement. For these reasons, remand is warranted to obtain a new VA examination and opinion as to the etiology of the Veteran's diagnosed low back disabilities. In addition, in November 2016, the Veteran submitted VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs, authorizing VA to obtain the Veteran's treatment records from two private medical providers. It does not appear that VA has attempted to obtain these records. This Release automatically ends 180 days from the date it was signed. Therefore, the Board finds that the RO must attempt to obtain a new Release for this information. If the RO successfully obtains a new Release for this information, then the RO should obtain such records and associate them with the claims folder. The matters are REMANDED for the following action: 1. Obtain an updated Release from the Veteran for identified medical treatment records from Community Medical Center, Dr. R.H., and any other identified medical provider. If a new Release is obtained, request the records from the identified medical treatment providers and associate any records obtained with the claims folder. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed low back disabilities. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. After reviewing the Veteran's claims file and examining the Veteran, the examiner should provide the following opinions: (a) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's diagnosed low back disabilities, including DDD and DJD, are related to or caused by service, to include the Veteran's documented in-service complaints of low back spasm and impression of low back strain. (b) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's diagnosed low back disabilities, including DDD and DJD, are related to or caused by the Veteran's presumed exposure to herbicide agents. ***In formulating this opinion, the examiner should not consider whether the Veteran's back disability is one for which a legal "presumption" has been established with regards to an etiological connection to herbicide agents. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports much be considered. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. A detailed rationale must be provided for all opinions rendered. 3. Then, readjudicate the issues on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.