Citation Nr: 0812164 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 02-00 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The veteran had active service from November 1966 to May 1967. This matter returns to the Board of Veterans' Appeals (Board) originally on appeal from an April 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The record reflects that the Board previously denied the veteran's claim for service connection of degenerative disc disease of the lumbar spine in a May 2005 decision and the veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2007, the Court issued a memorandum decision that vacated the May 2005 Board decision and remanded the matter to the Board for readjudication. For reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In the August 2007 memorandum decision, the Court determined that the July 2004 VA medical opinion that the Board relied upon in finding that the veteran's low back disorder was not related to service was inadequate and, as a result, the Board's reliance on the opinion in its May 2005 decision was clearly erroneous. In that regard, the Court observed that the July 2004 VA medical examiner (Dr. R.H.S.) concluded that it was quite difficult to say whether the veteran's one episode of a back injury in 1967 was completely responsible for his current back condition in the face of his aggravating injuries in 1972 and 1999 and that, in all likelihood, it was less likely than not that the veteran's current back condition was solely due to his injury. However, the Court explained that the opinion was not adequate because Dr. R.H.S. limited his opinion to whether the veteran's disability was "completely" or "solely" due to the veteran's 1967 injury and he did not address whether it was at least as likely as not that the veteran's low back disorder had any relation to his service to include inception. The Court has held that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board must supplement the record in this case by seeking another medical opinion from Dr. R.H.S. to resolve the medical question of whether it is at least as likely as not that the veteran's low back disorder has any relation to his active service or, if Dr. R.H.S. is not available to render such opinion, affording the veteran with another medical examination and nexus opinion with respect to his claim. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain a supplemental medical opinion from the veteran's July 2004 VA spine examiner, Dr. R.H.S., that includes review of all pertinent records associated with the claims file. In the supplemental opinion, Dr. R.H.S. should address whether or not it is at least as likely as not (i.e., probability of 50 percent) that the veteran's low back disorder is causally related to his active military service. Dr. R.H.S. should also specifically comment on whether or not it is at least as likely as not that the veteran's current low back disorder had its inception in service. Please send the claims folder to Dr. R.H.S. for review. 2. If Dr. R.H.S. is unable to render a supplemental opinion that addresses the above, the veteran should be afforded with another VA examination with an orthopedist to determine the identity and etiology of any low back disorder that may be present. All indicated evaluations, studies, and tests deemed necessary by the orthopedist should be accomplished and all findings reported in detail. The claims file should be made available to the orthopedist for review in connection with the examination. The orthopedist should state whether any low back disorder found on examination is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) causally related to any symptomatology shown in service or any other incident thereof. The orthopedist also should specifically comment on whether or not it is at least as likely as not that the veteran's current low back disorder had its inception in service. The orthopedist should provide a thorough rationale for his or her conclusion. Please send the claims folder to the examiner for review in conjunction with the examination. 3. After any additional notification and development that the RO deems necessary is undertaken, the veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to ensure due process and to obtain additional development. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran 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). _________________________________________________ STEVEN L. COHN 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).