Citation Nr: 0528771 Decision Date: 10/26/05 Archive Date: 11/09/05 DOCKET NO. 99-12 507 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for dorsolumbar paravertebral myositis. 2. Entitlement to service connection for a dysthymic disorder, claimed as secondary to a service-connected disability. REPRESENTATION Appellant represented by: M. E. Wildhaber, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from August 1979 to October 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1998 RO rating decision which, in pertinent part, determined that new and material evidence had not been received to reopen a claim for service connection for dorsolumbar paravertebral myositis and denied service connection for a dysthymic disorder, claimed as secondary to a service-connected disability. In an April 2002 decision, the Board, in pertinent part, denied the veteran's claims. The veteran then appealed that Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2003, the parties (the veteran and the VA Secretary) filed a joint motion requesting the Court to vacate the Board decision on these issues and remand the issues to the Board. A July 2003 Court order granted the motion. In October 2003, the Board remanded this appeal for further development. In an October 2004 decision, the Board denied the veteran's claims. In October 2004, the veteran filed a motion to vacate the October 2004 Board decision. In February 2005, the Board concluded that the October 2004 Board decision should be vacated. However, the Board noted that in view of the appeal pending at the Court, the Board lacked jurisdiction to proceed with vacatur at that time. In March 2005, the VA Secretary filed a motion to vacate and remand the Board's October 2004 decision. An April 2005 Court order granted the motion. The Board finds that the October 2004 Board decision on these issues has been vacated by the April 2005 Court Order. Therefore, the appellant's motions for vacatur and reconsideration of that decision are moot. REMAND The veteran was last afforded a VA spine examination in February 2004. The diagnosis was dorsolumbar paravertebral myositis. The examiner noted that the veteran's claims folder and service medical records had been reviewed. The examiner commented that it was his opinion that the veteran's dorsolumbar paravertebral myositis was not at least as likely as not incurred in or aggravated during service. The examiner also remarked that the veteran's degenerative joint disease of the thoracic and lumbar spine, diagnosed by X-rays in 1984, was due to the natural progress of aging. A January 2004 VA psychiatric examination report related a diagnosis of a dysthymic disorder. The examiner commented that after a review of the veteran's claims folder and performing a clinical history, it was his opinion that the veteran's dysthymic disorder was precipitated by the physical limitation and chronic pain produced by her chronic low back condition and that, therefore, such was etiologically related to dorsolumbar paravertebral myositis. A September 2005 private report from C. N. Bash, M.D., noted that he had reviewed the veteran's claims file. Dr. Bash indicated that it was his opinion that the veteran suffered from degenerative disc disease as her primary problem and that she had been given other diagnoses in confusion over her primary diagnosis and also partly as secondary to conditions and manifestations of the degenerative disc disease. Dr. Bash stated that it was his opinion that the veteran's service-induced degenerative disc disease was causing her other associated diagnoses including her most recent diagnosis of dorsolumbar paravertebral myositis. Dr. Bash also commented that it was his opinion that the veteran's past/present back conditions of degenerative disc disease and associated problems of pain, spondylosis, myositis, and radiculopathy were caused by her service experience. Dr. Bash stated that, therefore, it was his opinion that it was likely that the veteran's most recent diagnosis of dorsolumbar paravertebral myositis and associated radiculopathy was also likely caused by the physical regimen required of the veteran during her period of service. The Board observes that Dr. Bash also listed a number of reasons why he disagreed with the opinion provided by the VA examiner from the February 2004 VA spine examination. The Board notes that subsequent to the issuance of the February 2004 supplemental statement of the case, additional medical evidence (the September 2005 private report from Dr. Bash, noted above), was submitted directly to the Board. The veteran has not submitted a waiver with regard to initial RO consideration of these records. Thus, the case will also be returned to the RO to allow for initial consideration of the evidence and for a supplemental statement of the case. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Given such factors, it is the judgment of the Board that the duty to assist the veteran with his claims includes having the VA examiner (who conducted the February 2004 VA spine examination) review the claims folder and provide an additional medical opinion. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2004). Accordingly, this issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C., for the following: 1. Make arrangements to have the claims folder forwarded to the examiner who conducted the February 2004 VA spine examination and have him review the record and indicate that such has been accomplished. Based on a review of historical records and medical principles, the examiner should provide a medical opinion, with adequate rationale, as to the approximate date of onset and etiology of any diagnosed back disability, including any relationship with the veteran's period of service from August 1979 to October 1979. The examiner should specifically comment on the September 2005 report (and opinion) from Dr. Bash. In the event that the original examiner is not available, the claims folder should be submitted to another VA examination for review and the requested medical opinion. 2. Thereafter, review the veteran's claims for service connection for dorsolumbar paravertebral myositis and for service connection for a dysthymic disorder, claimed as due to a service- connected disability. If the claims are denied, issue a supplemental statement of the case, which takes into account all evidence submitted since the last statement of the case (including evidence submitted directly to the Board), to the veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ HARVEY P. ROBERTS 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) (2004).