Citation Nr: 0810180 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 98-04 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for lumbar strain and spondylolisthesis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and spouse INTRODUCTION The veteran served on active duty from July 1980 to February 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The Board remanded the appeal in April 2001 and April 2004 for additional development and denied the appeal in July 2005. The veteran appealed the Board's July 2005 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in January 2007 granting a joint motion by the parties and returned the matter to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The joint motion granted by the Court enumerates three reasons for returning the appeal to the Board. First, although the August 1999 VA examiner noted a "preexisting congenital abnormality in the form of a spondylolisthesis" and the July 2002 VA examiner noted that the veteran's "spondylolysis and spondylolisthesis was likely long- standing congenital or developmental in nature," neither examiner specifically referred to the veteran's spondylolisthesis as a congenital or developmental "defect." Thus, the Board's characterization of the veteran's spondylolisthesis as a congenital defect was considered a violation of Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). It is necessary, therefore, to obtain an opinion that specifies whether the veteran's spondylolisthesis is a congenital or developmental "defect." Second, the Board failed to discuss the opinion contained in the July 2002 VA examination report. Moreover, thirdly, the July 2002 VA examination report did not "explain and provide a rationale for any differences of opinion with the May and August 1999 medical opinions" as required by the terms of the Board's April 2001 remand instructions. Hence, Stegall v. West, 11 Vet. App. 268 (1998) was considered violated. This will also give the agency of original jurisdiction an opportunity to ensure that all notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) are met, including the specific notice requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) are met, including the specific notice requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the veteran for an examination to obtain an opinion concerning whether the veteran has a current back disability that is related to disease or injury during his active military service. The veteran's claims folder should be available to the examiner. The examination report should include all the current diagnoses involving the veteran's low back. In the examination report, the examiner should include the following opinions: (a) For each current diagnosis, the examiner should state whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosed disability was incurred or aggravated (permanently increased in disability) during active military service. In so doing, the examiner should explain and provide a rationale for any differences in opinion with the May 1999 opinion by Dr. Dorsher and/or the opinion in the August 1999 VA examination report. (b) The examiner should specifically state whether the veteran's spondylolisthesis is a congenital or developmental defect or whether it is a congenital disease. 3. After the development requested above has been completed to the extent possible, review the record. If any benefit sought on appeal remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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. 2007). _________________________________________________ MARY GALLAGHER 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) (2007).