Citation Nr: 22028411
Decision Date: 05/13/22	Archive Date: 05/13/22

DOCKET NO. 20-03 887
DATE: May 13, 2022

REMANDED

Entitlement to service connection for a back disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August1976 to May 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The matter was previously remanded by the Board in a December 2021 decision for additional development and has now returned for further appellate review. 

1. Entitlement to service connection for a back disorder is remanded.

While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim can be decided.  Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Pursuant to the December 2021 Board remand decision, the Veteran received a VA examination regarding the nature and etiology of his claimed back disorder in January 2022.  In formulating an opinion, the examiner was requested to address the Veteran's assertion that his present back disability is related to being required to return to manual labor such as having to pick up trash and shred documents in a cold garage soon after his noted in-service injury.  Regarding this request, the examiner opined that the present condition was "less likely than not related to the in-service back injury", but did not specifically address the Veteran's contentions or his lay statements asserting chronic back pain.  Accordingly, the examination is inadequate for determining entitlement to service connection and remand is warranted to obtain a new examination. 

The matter is REMANDED for the following action:

1. Afford the Veteran an examination by a physician of appropriate expertise to determine the nature and etiology of his claimed back disorder.  Any indicated evaluations, studies, or tests deemed necessary should be performed.  The entire claims file and a copy of this remand decision should be made available to the examiner designated to provide the opinion.

The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran's active duty service.  In providing this opinion, the examiner must address all relevant evidence of record, including but not limited to lay statements and evidence of an in-service back injury, as it pertains to in-service incurrence and continuity of symptomatology.  If the examiner chooses to reject the Veteran's lay statements, the examiner must provide a reason for doing so.  The Veteran's lay statements may not be rejected solely due to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record.

The examiner must also address the Veteran's contentions that his present back disability is related to being required to return to manual labor such as having to pick up trash and shred documents in a cold garage.

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Gorum, 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.