Citation Nr: 22042579 Decision Date: 07/27/22 Archive Date: 07/27/22 DOCKET NO. 17-05 604 DATE: July 27, 2022 REMANDED Entitlement to service connection for a back disability, to include intervertebral disc syndrome (IVDS) and lumbosacral strain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1994 to May 1995 with additional periods of service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of the case is now before the RO in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a December 2019 videoconference hearing. A transcript of this hearing is of record. In February 2020, the Board, in pertinent part, remanded the issue on appeal for additional development. The case was returned to the Board. Then, in November 2021, the Board, in pertinent part, again remanded the issue on appeal for additional development. As discussed below, there has not been substantial compliance with the November 2021 remand instructions, so the matter must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In December 2021, the Veteran executed a new power-of-attorney (VA Form 21-22), designating the South Carolina Office of Veterans Affairs as his representative. The Board recognizes the change in representation. 1. Entitlement to service connection for a back disability, to include IVDS and lumbosacral strain, is remanded. In the November 2021 remand, the Board instructed the RO to schedule the Veteran for a VA examination to determine whether the Veteran met the criteria for a diagnosis of IVDS, in addition to performing the appropriate testing to confirm the diagnosis. Further, the Board directed that the examiner provide an etiological opinion addressing whether any of his current back diagnoses, to include his currently diagnosed lumbosacral strain, was related to his active duty service. However, the Board finds that the appeal was returned to the Board before the requested development had been completed. The record shows that the RO scheduled the Veteran for back examinations on three separate occasions in January 2022, April 2022, and May 2022. After not reporting for the first VA examination in January 2022, VA called the Veteran in March 2022 and left a message for the Veteran asking him if he still wished to attend an examination. See March 2022 Report of General Information. Shortly thereafter in March 2022, the Veteran requested that his VA examination be rescheduled. See March 2022 Report of General Information. When the Veteran did not report for his scheduled VA examination for his back in March 2022, VA sent the Veteran an April 2022 letter notifying him that another VA examination had been requested, that he would be notified of the date, time, and place of that examination, and that failure to report without good cause would result in his claim being evaluated based on the evidence of record, or even denied. See 38 C.F.R. § 3.655. VA indicated that the Veteran did not report for his scheduled May 2022 VA examination. However, it appears that the Veteran did not receive notification letters informing him of the date, time, and place for any of the VA examinations for the back, which had been scheduled in January 2022, April 2022, and May 2022. The record does not include any documentation that the Veteran had been contacted either in writing or by telephone to inform him in advance of the scheduled VA examinations for his back. The Veteran has a duty to report at the scheduled time and to actively participate in the development of the claim (unless good cause for the absence has been shown), but the Veteran was never given the opportunity in the first place. Further, the Veteran has attended several VA examinations in the past suggesting both an ability and willingness to report at a scheduled time and to participate in the claim. Accordingly, the Board finds that the RO did not substantially comply with the November 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, another remand is required to schedule the Veteran for a VA examination for his back and to notify him of the date, time, and place of the examination. The matter is REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's back disability that are not currently of record. 2. Schedule the Veteran for a VA examination by an appropriately qualified clinician (M.D.) for his back disability. Send the Veteran a notification letter informing him of the date, time, and place of the VA examination and include a copy of letter with the claims file. Notify the Veteran of his duty to report and of the consequences for failing to report to the examination without good cause. See 38 C.F.R. § 3.655. The examiner should respond to the following: (a.) State whether the criteria for a diagnosis of IVDS are met. The examiner should perform the necessary testing to confirm whether the Veteran has IVDS. (b.) For each diagnosis, the examiner should opine whether the Veteran's back disability had its onset during active duty service or was otherwise etiologically related to service. In providing the above opinions, the examiner must address all the Veteran's back diagnoses provided during the pendency of the appeal, including his lumbosacral strain. The examiner must not rely on the finding that the Veteran did not have documented back problems following service without also specifically addressing the Veteran's lay statements regarding the onset and continuity of his back problems. See December 2019 Board hearing transcript. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. (Continued on the next page) 3. Thereafter, review the requested VA medical examination and opinion report 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). 4. After ensuring the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.