Citation Nr: 22040152 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 16-27 420 DATE: July 13, 2022 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to March 1998 and from January 2003 to March 2004, to include additional service in the reserves. The Veteran is in receipt of a Southwest Asia Service Medal with 2 Bronze Service Stars and a Combat Action Ribbon. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing is of record. In July 2021 and most recently in February 2022, the Board remanded this matter for additional development. Unfortunately, the claim must be remanded once again as the Board is not satisfied that there was substantial compliance with its most recent remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 V et. App.268, 271 (1998). Entitlement to service connection for a low back disability is remanded. The Veteran seeks service connection for his low back disability, currently-diagnosed as lumbosacral strain. At his February 2021 Board hearing, the Veteran testified that his back pain began in the Navy and that it was caused by carrying heavy equipment and "falling and getting hurt." The Veteran reported a motor vehicle accident (MVA) in 2003 that injured his back and worsened his condition overall. See February 2021 Board Hearing Transcript Pursuant to the February 2022 Board remand, the RO obtained a VA examination and addendum opinion in February 2022. The February 2022 VA examiner opined that the Veteran's low back disability is less likely than not related to his active service. After reviewing the Veteran's claims file, the examiner stated that there is no evidence of chronicity. The examiner stated that throughout the years after separating from service, the Veteran's back condition was described as "fine", "stable", "no red flags." The records also show the veteran had an MVA in 2020 sustaining injuries including the back. The veteran's hearing was after this MVA. He rated the pain as a 9 on 1-10 scale. The veteran has never reported pain that severe while in the military. Based on the injury, it is not within the realm of medical possibility that the Veteran's back condition is linked to his current back condition. The Board finds the February 2022 VA opinion inadequate as the examiner did not consider the Veteran's credible lay reports of continuous symptoms since service and relied on an inaccurate factual premise in providing her negative opinion. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Specifically, during a September 2012 VA treatment visit the Veteran reported low back pain since MVA on active duty. See September 21, 2012 VA Treatment Note. During a January 2015 VA treatment visit the Veteran reported low back pain since a MVA on active duty. Similarly, a July 2015 VA treatment note documents low back pain with an onset date of 2003. See January 13, 2015, and July 24, 2015 VA treatment notes. Finally, the Veteran asserts that he self-medicated for many years. See January 2016 Notice of Disagreement. As such, remand is required to obtain an addendum VA opinion that considers the Veteran's lay statements and provides an adequate rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following actions: 1. Obtain a VA medical opinion from an appropriate VA medical professional, who has not previously provided an opinion, to determine the nature and etiology of the Veteran's low back disability. A full VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND and the prior REMAND, and that review must be noted in the report. The examiner is advised that the Veteran is a combat Veteran as he is in receipt of the Combat Action Ribbon. As such, the Board must consider the provisions of 38 U.S.C. §1154(b), which pertain to a relaxed evidentiary standard for combat veterans for proving the onset of an injury in service. Specifically, VA will accept lay evidence as sufficient proof of a combat veteran's injury in service, if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record of the injury. The examiner is asked to fully respond to the following: (a) Whether the Veteran's lumbosacral strain was incurred in or caused by an in-service injury, illness, or event during the Veteran's active service from March 1988 to March 1998 and/or from January 2003 to March 2004, to include as due to carrying heavy equipment and "falling and getting hurt"? (b) Whether the Veteran's lumbosacral strain was incurred in or caused by an in-service injury, illness, or event during the Veteran's active service from March 1988 to March 1998 and/or from January 2003 to March 2004, to include as due to the August 2003 MVA? In providing the requested opinion, the examiner should specifically consider and address the following evidence: VA treatment notes documenting the Veteran's reports of low back pain since MVA on active duty, with onset date of 2003. See September 21, 2012, January 13, 2015, and July 24, 2015 VA Treatment Notes (uploaded 4/29/15 and 9/8/15) The Veteran's report that he self-medicated for many years. See January 5, 2016 Notice of Disagreement The Veteran's Board hearing testimony that his back pain began in the Navy and that it was caused by carrying heavy equipment and "falling and getting hurt." The Veteran further testified that the 2003 MVA injured his back and worsened his condition overall. See February 4, 2021 Board Hearing Transcript The examiner must set forth a complete rationale for any conclusion reached, citing to medical literature and/or evidence in the Veteran's claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. 2. Thereafter, review the requested VA medical opinion to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.