Citation Nr: 1022226 Decision Date: 06/15/10 Archive Date: 06/24/10 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 WITNESS AT HEARING ON APPEAL Dr. C. N. Bash ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty 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. In a March 2005 decision, the Board determined that new and material evidence had been received and reopened the claim. The underlying claim for service connection was remanded for additional development, including providing the Veteran with a VA examination. In August 2007, the Board denied the Veteran's claim. The Veteran appealed the decision denying the claim to the Court of Appeals for Veterans Claims (Court). By order issued in August 2007, the Court vacated the Board's decision pursuant to a Joint Motion for Remand. In April 2009, the Board remanded the claim for additional development. The appeal is REMANDED to the RO. REMAND In April 2009, the Board remanded the claim for the purpose of obtaining an opinion addressing whether the Veteran's current lumbar spine disability was related to an injury the Board conceded occurred in service. The remand instructions specifically directed that the examining physician not dismiss the Veteran's reported history of an in-service injury simply because there was no evidence of in-service treatment, as the Veteran's service treatment records were unavailable for review. In addition, the Board instructed the examiner to acknowledge and discuss the Veteran's report of a continuity of symptomatology since service, and to comment on the clinical significance of post-service injuries that occurred in 1964 and 1967, as they related to the Veteran's current disability. Finally, the Board instructed that if the examiner were to offer an opinion unfavorable to the Veteran, the examiner should provide a complete rationale for his opinion, including discussing all contrary evidence, especially the 2005 independent medical examination report and testimony of Dr. C. N. Bash. The Veteran underwent the requested examination in August 2009, as a result of which the examiner determined that it was less likely than not that the Veteran's current disability was related to an injury sustained in service. The examiner reasoned that because "there was no evidence to support chronicity, since medical treatment records start almost 20 years after the reported injury," it was most likely that any in-service injury resolved prior to his discharge from service. In offering this opinion, the examiner, contrary to the Board's explicit instructions, disregarded the Veteran's lay evidence of continuity of symptomatology in determining that there was no evidence to support chronicity. In addition, the examiner failed to address the clinical significance of the post-service back injuries and did not discuss the contrary evidence of record, including the 2005 independent medical examination report and testimony of Dr. C. N. Bash. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the August 2009 examiner did not comply with the April 2009 remand instructions, the Board has no choice but to again remand the claim for a compliant opinion. Accordingly, the case is REMANDED for the following actions: 1. Forward the claims file to the examiner who conducted the August 2009 VA examination for the purpose of correcting the inadequacies identified above. No further examination of the Veteran is necessary, unless the examiner determines otherwise. If the examiner who conducted the August 2009 examination is unavailable, the Veteran should be scheduled for a new examination. The examiner should render an opinion as to whether it is at least as likely as not that the Veteran's current back disability is related to the back injury the Board has conceded the Veteran sustained in service in May 1957. 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. In addition, the examiner must specifically acknowledge and discuss the Veteran's report of a continuity of symptomatology since service. The examiner must 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 must 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 appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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. 2009). _________________________________________________ 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) (2009).