Citation Nr: 0814988 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 02-02 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability, to include as due to a neck injury, sustained on August 13, 1999. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. WITNESSES AT HEARING ON APPEAL Appellant and D.J. ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from July 1963 to June 1966 and from May 1969 to April 1975. He subsequently served in the Army National Guard. He was serving on active duty for training on August 13, 1999, when he sustained a neck injury for which service connection has been established. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2001 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2002, the veteran was afforded a Travel Board hearing with the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In November 2005, the Board denied the veteran's claim. The veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). Both parties later filed a Joint Motion for Remand, which the Court granted in April 2006, vacating the November 2005 Board decision. This claim was returned to the Board in October 2006 and was remanded for additional evidentiary 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 been in adjudicative status for several years, and that it 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. In October 2006, the Board remanded this claim to the RO for a VA orthopedic examination in order to identify the nature and severity of the claimed low back disability; and for a medical opinion, with complete rationale, concerning the medical questions presented in this case. Again, this remand conferred upon the veteran the right, as a matter of law, to complete compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The October 2006 Board remand instructed the RO/AMC to schedule the veteran for a VA specialty examination with (if possible) at least two examiners with appropriate expertise. The examiners were then to provide a medical opinion, with complete rationale, as to whether it was at least as likely as not (50 percent or greater probability) that any current low back disability is etiologically related to, or was permanently aggravated by, the August 1999 injury or any other accident or injury in service. The veteran was provided with a new VA examination in October 2007. The Board notes that the examination was performed by only one examiner without any explanation as to why an additional qualified examiner was not included, as requested by the October 2006 Board remand. Most importantly, however, the examiner failed to address the veteran's intercurrent injury in 1992, where [based on his own account in the Social Security Administration examination report] during the course of his employment at Latrobe Steel, he slipped and fell on icy steps and injured his back. The examination report was not based on the full evidence of record. This claim must be remanded to address this matter. Accordingly, the case is REMANDED for the following action: 1. Updated treatment records, VA and non-VA, covering the period from May 2007 to the present, should be obtained and added to the claims file. 2. The veteran should be provided a new VA orthopedic opinion by at least two examiners with appropriate expertise. If a second or third examiner is not available, this must be memorialized in the record. The examiners should affirmatively state that pertinent documents in the claims file were reviewed in conjunction with the medical opinion. In particular, the examiners must address the veteran's low back injuries in 1988 and in 1992. Based upon the review of the claims file, the VA examiners should provide a medical opinion, with complete rationale, as to whether it is likely (greater than 50 percent probability), unlikely (less than 50 percent probability),or at least as likely as not (50 percent or greater probability) that any current low back disability is etiologically related to, or was permanently increased in severity beyond the natural progression by the August 1999 injury or any other incident in service. The examiner(s) should also comment on the May 2004 and March 2005 medical opinions regarding etiology and reconcile them, to the extent possible, with the current opinions. The RO/AMC must ensure that there has been full compliance with these remand directives by the Board. See Stegall, supra. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant 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) _________________________________________________ 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).