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).