Citation Nr: 1025305 Decision Date: 07/07/10 Archive Date: 07/19/10 DOCKET NO. 07-00 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for lumbar spine disability, to include herniated nucleus pulposus (HNP). REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from December 1988 to September 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claim continues to remain under the jurisdiction of the RO in Wichita, Kansas. In February 2008, the Veteran testified before the undersigned Veterans Law Judge in Wichita, Kansas; a transcript of that hearing is of record. Following the completion of development requested in the Board's remand of April 2008, a March 2009 Board decision denied the Veteran's claim for service connection for a lumbar spine disability, to include HNP. Thereafter, following a timely appeal of that decision, a February 2010 Order of the United States Court of Appeals for Veterans Claims (Court) vacated the Board's March 2009 decision and remanded the case for compliance with the instructions of a Joint Motion for Remand, dated in February 2010. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the February 2010 Joint Motion for Remand, the parties to the Joint Motion determined that the September 2008 VA spine examiner incorrectly stated what was shown in the Veteran's service treatment records, and that since it was therefore based on an inaccurate factual predicate, it was inadequate for evaluation purposes. More specifically, after noting the examiner's reference to the Veteran's report at his service separation examination of "recurrent back pain, back feels out of place at times, [and] [c]an't make full movements," the parties found that the examiner then erroneously stated that the Veteran's service treatment records did not indicate that he ever had any problems with his back, and the parties to the Joint Motion further observed that the July 8, 1996, separation examination also showed a defect and diagnosis of mechanical low back pain; a report of medical assessment (DD Form 2697), signed on May 29, 1996, contains the Veteran's report of low back pain due to an injury in service for which he did not seek medical care; and that a July 11, 1996 physician's statement (side 2 of DD Form 2697) notes the Veteran's complaint of mechanical low back pain. Therefore, the parties to the Joint Motion concluded that remand of the claim was warranted in order for VA to provide the Veteran with an adequate medical examination and thereafter, readjudication of the claim. Consequently, the Board finds that it has no alternative but to remand this matter so that the Veteran may be afforded a new examination and etiological opinion based on the more accurate factual background noted above. The parties to the Joint Motion further found that without supporting medical evidence, the Board had rendered an improper medical conclusion when it concluded that the Veteran's in- service back injury was acute and transitory, and that the Board's analysis with respect to the Veteran's in-service injury was therefore inadequate. While the case is in remand status, arrangements should also be made to obtain additional VA treatment records for the Veteran, dated since November 2007. Accordingly, the case is REMANDED for the following action: 1. Arrangements should be made to obtain additional VA treatment records for the Veteran, dated since November 2007. 2. The Veteran should then undergo a new appropriate VA examination to determine the nature, extent, and etiology of any current lumbar spine disability. The claims folder must be made available to the examiner(s) for review of the case, and the examination report(s) should include discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies are to be performed and the examiner should review the results of any testing prior to completing his or her report. All findings should be reported in detail. Complete diagnoses should be provided. a. The examiner should discuss the nature and extent of any disability involving the lumbar spine, to include herniated nucleus pulpous at L4-5 and spinal stenosis and then set forth the medical probability that any disability is traceable to any incidents, symptoms, or treatment the Veteran experienced or manifested during service. Specifically, the examiner should address the Veteran's in-service injury during service as the possible onset of any current back disability as documented by the May 29, 1996, and July 11, 1996, entries on the Veteran's DD Form 2697 (side 1 and 2 of DD Form 2697), the Veteran's separation examination records from July 8, 1996, and the Veteran's report of continuing low back symptoms since his in-service injury in approximately 1995. b. The examiner should specifically address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the clinical manifestations of a lumbar spine disability developed as a result of injury while the Veteran was in service or within one year following his separation from service in 1996. If the Veteran's current lumbar spine disability cannot be regarded as having been incurred while the Veteran was in service, the examiner should specifically indicate so. 3. The RO should read all medical opinions obtained to ensure that the remand directives have been accomplished, and should return the case to the examiner if all questions posed are not answered. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim by evaluating all evidence obtained after the last statement or supplemental statement of the case (SSOC) was issued. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate SSOC containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, including VCAA and any other legal precedent. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).