Citation Nr: 23008563 Decision Date: 02/09/23 Archive Date: 02/09/23 DOCKET NO. 18-25 524 DATE: February 9, 2023 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active-duty service from January 1967 to January 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) January 2016 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran requested a hearing in his May 2018 VA Form 9 but withdrew his request in January 2020. 38 C.F.R. § 20.704(c). In May 2020, the Board reopened the claim and remanded entitlement on the merits for additional development, to include obtaining updated treatment records and a new VA examination. 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that he injured his back while playing football in-service, in or around October 1968, and that his back has continuously hurt since then. See Notice of Disagreement, March 2016. In May 2020 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the May 2020 remand, the Board finds that the AOJ has not conducted the necessary development to substantially comply with the remand directives. The Board's directives stated that any examiner who opines on the etiology of the Veteran's back disability must address his lay statements and pointed out that the Veteran "is competent to report" those facts. Per Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) a layperson is competent to testify regarding things they experience, such as the onset, duration, frequency, and severity of pain, even if they are unable to diagnose the underlying condition. In September 2020, the AOJ obtained a medical opinion regarding the etiology of the Veteran's back disability. The examiner described the Veteran's back symptoms as "transient," but did not address the Veteran's contentions of having experienced continuous pain since service. The examiner did correctly point out that the Veteran is unable diagnose the underlying medical conditions (in his case, Degenerative Disc Disease). However, the examiner erred when restating the question as whether the in-service back injury was "diagnostic" of the Veteran's DDD. The question posed to the examiner was not whether DDD could be diagnosed at the time of the injury, but rather whether the in-service injury caused the DDD, regardless of when the DDD was diagnosed. A further remand is necessary to obtain an opinion that addresses the Veteran's lay testimony and the question of causation. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion, from a qualified medical examiner, regarding the Veteran's back disability. The examiner is to be provided with a copy of the Veteran's claims file, as well as these remand directives. The examiner must provide the following opinion: (a) Whether it is as least as likely as not (likelihood in approximate balance, if not greater) that the Veteran's current back disability (a) began in service; (b) manifested to a compensable degree within one year after his separation from service; or (c) is otherwise related to his active service? The examiner is instructed that the Veteran is competent and capable of providing testimony regarding when he injured his back, and the fact that it has hurt continuously since service. The absence of contemporaneous medical or treatment records alone cannot be used to counter the Veteran's reports of having experienced back pain since service. The examiner should consider the Veteran's post service medical records, which show that the Veteran injured his back in the workplace in approximately 1990. In so doing, the examiner should address the Veteran's complaints of back pain prior to the workplace injury. The examiner must provide complete rationales for all opinions provided. If the examiner cannot provide an opinion without resorting to mere speculation, they must explain why that is the case. (Continued on the next page) If the examiner cannot provide the necessary opinions without an in-person examination of the Veteran, the AOJ shall schedule the examination at a time and place convenient to the Veteran. Marissa Caylor Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.