Citation Nr: 0812226 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 03-17 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from July 1985 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a back condition. The Board previously remanded this case in August 2007. 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 case was previously remanded in August 2007 so that the veteran could be afforded a VA examination to determine the etiology of his lumbar spine disability. The remand noted that the veteran had a present diagnosis of degenerative disc disease in the lumbar spine and syndesmophytes at T7-T8 and T8-T9, which was found to be unusual considering the veteran's age of 33. The remand also noted that the service medical records (SMRs) showed that the veteran had been assaulted by three men in December 1988 while he was running and suffered multiple kicks and punches to the head, face, and torso, and had a loss of consciousness. On physical examination, he had multiple injuries, including a small contusion to the left mid back. A VA examination was provided in November 2007 and although the examiner indicated that he had reviewed the claims file, he noted that the service medical records showed no evidence of treatment for a lumbar back condition in service; and thus that there was no evidence to indicate the veteran had any problems with his back while in service. The Board has, again, noted the presence of SMRs in the claims file confirming the in-service assault and contusion to the left mid back. Accordingly, the VA opinion is not accepted as probative medical evidence, as the examiner did not review all the relevant medical evidence when he made his assessment on the etiology of the lumbar spine disability. For this reason, another examination is warranted. If the claim cannot be granted based on the evidence that comes back from the second VA examination scheduled, the veteran should be scheduled for a Board hearing. The veteran previously testified before the undersigned Veterans Law Judge at a Board hearing at the RO on November 13, 2006. Unfortunately, a recording of the proceedings was not obtained. There is a record of the veteran being notified of this; however, after reviewing a copy of the Board remand, the veteran submitted a statement in February 2008 indicating that he never received notice that there was no transcript of his Board hearing and that he wanted to be rescheduled for another hearing. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA orthopedic examination to determine whether any current findings in the lumbar or thoracic spine are at least as likely as not related to service. The examiner must specifically note and comment on the service medical records, which show multiple injuries, including a small contusion to the left mid back in December 1988 after the veteran was assaulted by three men while he was running and suffered multiple kicks and punches to the head, face, and torso, and had a loss of consciousness. The claims folder must be made available to the examiner for review in conjunction with the examination. A detailed rationale for all medical opinions must be provided. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. Then, schedule the veteran for a Board hearing before a Veterans Law Judge, in accordance with applicable law. A copy of the notice scheduling the hearing should be placed in the claims folder. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ 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).