Citation Nr: 0912793 Decision Date: 04/06/09 Archive Date: 04/15/09 DOCKET NO. 99-04 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative disc disease with chronic lumbar strain, claimed as a back disorder. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney-at-Law WITNESS AT HEARING ON APPEAL Dr. C. N. Bash ATTORNEY FOR THE BOARD S. M. Kreitlow, Counsel INTRODUCTION The veteran had active service from August 1956 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO determined that the veteran had not submitted new and material evidence sufficient to reopen his previously denied claim for service connection for a back disorder. 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 In a March 2005 decision, the Board determined that new and material evidence had been submitted and reopened and remanded the claim for additional development, including providing the Veteran with a VA examination. In August 2007, the Board denied of the Veteran's claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). By order issued in the August 2007, the Court vacated the Board's decision pursuant to a Joint Motion for Remand. In the Joint Motion for Remand, the parties agreed that the May 2006 VA examination report did not comply with the Board's March 2005 remand instructions. As such, the Board has no discretion and must remand this matter for compliance with the Court's August 2007 order granting the parties' Joint Motion for Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). In addition, the Board notes that, in the August 2007 decision, it was found that the evidence was in equipoise as to the incurrence of an in-service back injury (although this decision has been vacated). When, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008). There are no service treatment records available regarding the claimed in-service back injury. However, the Veteran has clearly and consistently reported that he injured his back in the second week of May 1957 and was hospitalized for two weeks at Fort Belvoir in Virginia. In support of his claim, he has submitted a buddy statement that corroborates his testimony as to the time and cause of the injury, and as to the Veteran's hospitalization thereafter. The Board finds no reason to find either statement to be incompetent or incredible and it, therefore, raises a reasonable doubt as to the incurrence of a back injury in service. Resolving reasonable doubt in the Veteran's favor, the Board concedes the incurrence of a back injury in service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination. The examiner should render an opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or better) that the Veteran's current back disability is related to the Veteran's back injury incurred in service in May 1957. The Board notes that the examiner should not dismiss the Veteran's reported history of an in-service back injury simply because there is no evidence of in-service treatment as the service treatment records are unavailable for review. In addition, the examiner must specifically acknowledge and discuss the Veteran's report of a continuity of symptomatology since service. The examiner should also comment on the clinical significance of the post service back injuries in 1964 and 1967 as they relate to the current disability. If the examiner's opinion is unfavorable to the Veteran's claim, the examiner should provide a complete rationale for his opinion, including discussing all contrary evidence, especially the February 2005 independent medical examination report and testimony of Dr. C. N. Bash, as well as the assembled records, in a legible report. 2. After completing the above development, the veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran 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. 2008). _________________________________________________ STEVEN D. REISS Acting 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) (2008).