Citation Nr: 0810472 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 00-07 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans' Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. R. Weaver INTRODUCTION The veteran served on active duty from February 1973 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that found that new and material evidence had not been received to reopen a previously denied claim for low back pain. In March 2002, the veteran testified at a hearing at the RO that was presided over by a Board member who is no longer employed by the Board. That Board member ordered further development and the case was subsequently remanded for readjudication by the RO in November 2003. When the case was returned to the Board, the veteran declined the opportunity to have an additional hearing. In a July 2006 decision by the Board, the veteran's claim was reopened and remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND In July 2006, the Board remanded this case for further development. Among other things, the RO was requested to arrange a VA orthopedic examination for the veteran to determine the nature and etiology of any current low back disability. Based on his examination and review of all pertinent records in the claims file, the examiner was asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any current low back disability had its onset in service or was causally linked to any incident of active duty, to include the low back pain the veteran experienced in service in October 1973 while carrying heavy mail bags. The examiner was asked to provide a rationale for any opinion given. The veteran underwent a VA orthopedic examination in March 2007. After examining the veteran and noting his review of the claims file, the examiner opined that it is not likely that the veteran's 1973 in-service back injury is related to his present back condition. He supported his conclusion by noting: "According to all the medical records, the patient does have a problem with his lower back. He did injure himself in 1973 though there are no other medical records for 12 years indicating any kind of a back problem. His next injury was in 1984 to 1985. This was a work-related injury which was treated appropriately by a number of physicians, including a neurosurgeon." Review of the claims file, however, shows that the record contains a radiological report from a private physician dated September 1979. In that report, the veteran was diagnosed with Pseudoarthrosis at L-5, S-1 on the left side. Additionally, in a letter dated March 2002, a private physician stated that he treated the veteran for a back problem in 1978. Hence, the examiner's statement that there were no medical records indicating that the veteran had a back problem until 12 years after service is inaccurate. The aforementioned evidence was not only noted in the Board's July 2006 remand, but it was also pivotal in the Board's decision to reopen the claim. Thus, it necessary to remand the case for a nexus opinion that takes the evidence into account. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the July 2006 VA examination and request an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the current low back condition had its onset in service or is causally linked to any incident of active duty, to include the low back pain the veteran experienced in service in October 1973 while carrying heavy mail bags. The examiner is requested to review all pertinent records in the claims file, to include the September 1979 X-ray results and the March 2002 statement from Dr. O. Z. Please provide a rationale for any opinion given. If the clinician is unable to answer the question presented without resort to speculation, he should so indicate. If the requested examiner is unavailable, then arrange for the claims file to be reviewed and an opinion rendered by another qualified VA orthopedic specialist. If the physician feels that another examination is needed, one should be scheduled. 2. Then, readjudicate the claim of entitlement to service connection for a low back disability. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ 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) (2007).