Citation Nr: 0811327 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-09 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability, to include herniated nucleus pulposus, L4-5. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from August 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which declined to reopen the veteran's claim. Pursuant to an September 2007 motion and the Board's granting thereof in November 2007, this case has been advanced on the Board's docket under 38 U.S.C.A. § 7107 (West 2002 & Supp. 2007) and 38 C.F.R. § 20.900(c) (2007). In December 2007, the Board reopened the veteran's claim of entitlement to service connection for a low back disability, to include herniated nucleus pulposus, L4-5, and remanded the claim for additional development. 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 on his part. REMAND The Board is cognizant of the fact that the veteran's case has already been remanded in the past. Consequently, the Board wishes to assure the veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. As previously noted, review of the veteran's service medical records reveals that the veteran was treated in August 1944 with complaints of pain in the right hip. The pain became worse while the veteran was en route to Texas from Pennsylvania. The veteran reported that the pain was constant and so severe that he was unable to stand or walk on the right leg. There was no history of injury to the right hip and the veteran had no prior complaints of that type. On physical examination, there was no definite area of tenderness about the right hip; however, all motions of the hip were painful, particularly flexion and inward rotation. See service medical record, August 2, 1944. The veteran was seen again in September 1944 with full range of motion of the right hip and he was able to walk without a limp. He complained of very slight tenderness over the trochanteric region and gave a history of lumbar backache with nocturia and hematuria during the prior four years. Following the Board's March 1992 denial of his claim, the veteran submitted the medical report of Fred Smith, M.D., dated in March 1993. In the body of this report, the veteran provided history of the pain he had experienced in service in 1944 and that at the time it was felt he had a probable herniated disc. During the following years in service, the veteran stated that he continued to have problems with his back off and on. The veteran was sent to England and France and then discharged. The veteran reported that his back bothered him sometimes during this time but that it was not severe enough to keep him from doing his regular duties. See medical report of Fred Smith, M.D., March 4, 1993. In 1962, the veteran underwent a second laminectomy at the VA hospital in Maryland. He stated that after the second surgery, he was better than before, but he still had considerable back pain that had become worse over the years. The examiner concluded that it certainly seemed that the veteran had a service-connected back problem since he was treated for this in service, developed sciatica in the right side while serving in the military and that the condition has continued since. The examiner felt that the veteran would continue to have major problems with his lower back that would gradually worsen as he got older and he would continue to require treatment. Id. Pursuant to the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board remanded this claim for a VA orthopedic examination in December 2007. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the Board's remand directives were not complied with, this claim must be remanded. The veteran was afforded a new VA examination on January 2, 2008. As part of the Board's prior remand, the examiner was instructed to provide an explanation of the nature and etiology of any diagnosed spinal disability. The examiner was directed to address any relevant documents in the record and, thereafter, provide a medical opinion as to whether it is at least as likely as not that any diagnosed spinal disorders are related to the veteran's military service. The rationale provided for the examiner's negative nexus opinion was merely "[m]y clinical expertise and experience dictates this opinion." This is not a sufficient explanation as to why a negative nexus opinion was issued. A thorough and supported opinion must be provided. The United States Court of Appeals for Veterans Claims (Court) held that medical opinions which are speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 7 Vet. App. 30, 33 (1993). The examiner's rationale was all of the above. As such, an addendum to the January 2008 VA examination must be provided. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the examiner who performed the veteran's January 2008 orthopedic examination. The examiner should provide an addendum to the original examination report, thoroughly explaining the rationale behind the nexus opinion provided in January 2008. Merely stating that the examiner's clinical expertise and experience dictates this rationale is not sufficient. The examiner must provide medical authority as to why the veteran's current spinal disability is or is not related to service. The veteran may be recalled for examination, if the examiner desires. If the January 2008 examiner is not available, the veteran should be scheduled for an appropriate VA examination of his low back by a new examiner. The claims folder must be made available to the examiner for review of pertinent documents therein, and the examination report should reflect that such a review was conducted. The examiner should be asked to provide an opinion, with complete rationale, as to whether it is at least as likely as not (50 percent or greater likelihood) that any current low back disorder is the result of disease or injury during military service or is otherwise related thereto. The examiner should address any relevant documents in the record. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. Thereafter, the RO/AMC should readjudicate the claim for service connection for a low back disability. If the claim is denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 2002 & Supp. 2007). _________________________________________________ BARBARA B. COPELAND 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).