Citation Nr: 1509472 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 11-17 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board previously considered this issue in April and October 2014. In September 2013, the Veteran appeared and testified at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing has been associated with the claims file. The claims file is now entirely in Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2014, the Board remanded for an addendum opinion regarding the Veteran's low back disability. The VA examiner was specifically asked to consider the Veteran's lay statements regarding the onset and nature his back symptoms, to include his testimony during the September 2013 Board hearing. An addendum opinion was provided in December 2014. In it, the VA examiner noted that he had reviewed all the relevant information, including the Veteran's statements. Nevertheless, the examiner did not directly address these statements or provide a rationale for their rejection. Rather, the brief opinion incorporates the findings of the May 2014 examiner. As such, the opinion does not show adequate consideration of the Veteran's lay statements, as requested by the Board in the October 2014 remand. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Therefore, the opinion remains inadequate, and the prior remand directive was not substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). On remand, the examiner should directly address the Veteran's lay statements as to the onset and nature of his back symptoms during and after service, and provide an etiological opinion that shows consideration of those statements. The Board expects the examiner to particularly consider the Veteran's lay statements during the September 2013 Board hearing, a record of which is of record in Virtual VA. In the September 2013 hearing, the Veteran testified that he received treatment for a cervical strain in January 1993 while in service; this was prior to the June 1993 motor vehicle accident. He testified to having had back pain during service and being given 800 mg of Motrin to stop the pain. At the time, he worked in storerooms, where he had to lift boxes, bend, and stoop. The Veteran described the pain as a motion or traveling pain from the top part of his neck to the lower back. He stated that, after service, he received primary care from VA, where he was given ibuprofen and cyclobenzaprine for the pain. Subsequently, he switched to private primary care provider, but was not prescribed any pain medication; rather, he resorted to heating pads and over-the-counter medications, such as Tylenol, to manage the pain. He also indicated that he has had back symptoms since service. Assuming the accuracy of the history provided, is such history consistent with that of residuals for a motor vehicle accident? Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file, including a copy of this remand to an appropriate examiner other than the individual who conducted the December 2014 VA examination, for an addendum opinion regarding the Veteran's low back disability. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should respond to the following: Provide an opinion as to whether the Veteran's low back disorder is at least as likely as not (probability of 50 percent or higher) related to his military service. The examiner must consider the Veteran's lay statements regarding the onset and nature of his back symptoms and the opinion should demonstrate such consideration. As stated above, the Veteran testified in his September 2013 hearing that he began feeling back pain in January 1993 during service, prior to his in-service motor vehicle accident. He testified to having back pain during service and being given 800 mg of Motrin to stop the pain. At the time, he worked in storerooms, where he had to lift boxes, bend, and stoop. The Veteran described the pain as a motion or traveling pain from the top part of his neck to the lower back. He stated that, after service, he received primary care from VA, where he was given ibuprofen and cyclobenzaprine for the pain. Subsequently, he switched to private primary care provider, but was not prescribed any pain medication; rather, he resorted to heating pads and over-the-counter medications, such as Tylenol, to manage the pain. He also indicated that he has had back symptoms since service. The examiner is asked to assume the accuracy of the Veteran's reported history and state whether such history is consistent with any incident in service, to include the treatment for neck strain and the residuals of a motor vehicle accident. The examiner should explain the reasons for any opinion offered. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 2. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).