Citation Nr: 0813596 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 94-41 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from February 1978 to June 1979. This matter initially came to the Board of Veterans' Appeals (Board) following a February 1995 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 1995, the veteran testified during a hearing before RO personnel. In May 1997, the veteran testified during a hearing before a member of the Board sitting at the RO. The Board member who conducted that hearing is no longer employed at the Board. As a result, the veteran was given another opportunity to appear at a hearing. In January 2008, the veteran's attorney notified the Board that the veteran did not wish to appear at another hearing. By way of procedural history, following Board denials of the veteran's claim in November 1999 and October 2002, the veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2000 and March 2003, the Court vacated and remanded the Board decisions. The Board again denied the veteran's claim in January 2005. The veteran also appealed this denial to the Court. In a December 2005 Order, the Court, in response to a joint motion for remand that same month, vacated the January 2005 Board decision and remanded the matter to the Board for readjudication. See 38 U.S.C.A. § 7252(a) (West 2002). In a January 2006 letter, the Board notified the veteran's attorney that he had 90 days in which to submit additional argument or evidence in support of the veteran's claim. In April 2006, the veteran's attorney notified the Board that the veteran had no additional information or evidence to submit in support of his claim. In June 2006, the Board remanded this case to the Appeals Management Center (AMC) in Washington, D.C. That same month, the AMC transferred the veteran's claims file to the Muskogee VARO. Following further evidentiary development, the RO continued to deny the veteran's claim and returned this matter to the Board for further appellate consideration. Thereafter, in a January 2008 letter to the Board, the veteran's attorney requested an extension of time to submit additional medical evidence in support of the veteran's claim on appeal. The Board accepted the attorney's letter as a motion for extension of time to submit additional evidence. It granted the attorney's motion in February 2008. REMAND In February 2008, following the request for an extension to submit additional medical evidence, the veteran's attorney submitted a report of a January 2008 medical examination conducted by Timothy A. Swank, D. C., of Swank Chiropractic (Sports Medicine & Wellness Center, P. A.). Dr. Swank's examination report reflects his reported review of the veteran's pertinent medical records as well as an opinion in which he relates the veteran's current low back disability to service. With regard to this additional medical evidence, the veteran has requested that Dr. Swank's report of January 2008 be considered by the RO in the first instance. In light of the need to remand this claim to the RO at the request of the veteran for consideration of medical evidence from Dr. Swank, the Board finds that the claims file should be returned to the VA examiner who examined the veteran in July 2007. That examiner should specifically consider Dr. Swank's report of January 2008 and provide a supplemental medical opinion as to whether it is at least as likely as not that the veteran's current low back disability is related to his period of service. Arrangements should be made for the veteran to undergo additional examination only if the VA examiner who conducted the July 2007 VA examination is unavailable or if such examination is needed to answer the question posed above. 38 U.S.C.A. § 5103A (West 2002). (The Board emphasizes to the veteran that failure to report to any scheduled examination, without good cause, may result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2007).) The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the actions requested above, any other development and/or notification action deemed warranted under the VCAA should be undertaken prior to re-adjudicating the claim on appeal. Accordingly, this matter is REMANDED for the following actions: 1. The claims file should be forwarded to the VA examiner who examined the veteran in July 2007. That examiner should specifically consider the report of a January 2008 medical examination prepared by Timothy A. Swank, D.C., of Swank Chiropractic, following which the examiner should provide a supplemental medical opinion. In this regard, the examiner should opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's low back disability is related to his period of military service. An explanation for the opinion provided should be set forth. If the VA examiner's opinion differs from Dr. Swank's, a detailed explanation of why there is a difference should be set forth, which explanation should include references to evidence in the claims file to support the conclusions reached. (An examination should be scheduled only if the July 2007 VA examiner is unavailable or such examination is needed to answer the questions posed above.) 2. After undertaking any other development deemed appropriate, the veteran's claim on appeal should be re- adjudicated with consideration of Dr. Swank's report of January 2008 and the supplemental VA medical opinion obtained as a result of this remand. If the benefit sought is not granted, the veteran and his attorney should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).