Citation Nr: 1114985 Decision Date: 04/15/11 Archive Date: 04/21/11 DOCKET NO. 07-32 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from January 1968 to December 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2006-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, that in pertinent part denied service connection for an upper back condition and for a lower back condition. In March 2010, the Board remanded the case to VA's Appeals Management Center (hereinafter: AMC). In February 2011, the Veteran's representative contended that the requested development has not been carried out. 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 United States Court of Appeals for Veterans Claims held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its March 2010 remand, the Board requested inter alia that a VA examiner review the case and offer a diagnosis or diagnoses for any spine-related disorder. In a February 2011 informal hearing presentation, the Veteran's representative pointed out that the VA examiner has not offered a diagnosis or diagnoses. Review of the May 2010 VA medical opinion reveals that no diagnosis or diagnoses was/were offered for the spine-related claim. The May 2010 addendum report must therefore be remanded to the VA physician for clarification. 38 C.F.R. § 4.2 (If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). The Veteran recently submitted a private medical opinion from Steve Strom, D. O. In medical opinion letter addressed to: "To Whom It May Concern," Dr. Strom stated, "He has a diagnosis of chronic back pain and spinal stenosis. In my opinion, it would be possible that his chronic back pain had its origin in the service, however to say that for sure I would be unable to determine." In Savage v. Shinseki, 2011 WL 13796, the Court very recently held that, pursuant to 38 U.S.C. § 5103A(a), when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. The Board therefore requests that the claimant obtain the necessary information to clarify the report, as further explained below. The Court has stated that medical certainly on a material issue, such as service origin of back pain, is unnecessary. Where reasonable doubt exists, the claim may be granted. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, the Board requests that the Veteran contact Dr. Strom and ask her/him to address whether it is at least as likely as not (50 percent or greater possibility) that chronic back pain and/or spinal stenosis began during active service. A supporting rationale for any conclusion would be appreciated. Accordingly, the case is REMANDED for the following action: 1. Return the May 2010 VA medical opinion to the VA physician for clarification. The VA physician is asked to review the claims files and offer a diagnosis or diagnoses for the Veteran's reported spinal pains. The Veteran may be re-examined if necessary. If the specified physician is not available, a qualified substitute may be used. 2. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claim. If the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for a VA examination, without good cause, may result in adverse consequences to the claim. 38 C.F.R. § 3.655(b) (2010). 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. 2010). _________________________________________________ F. JUDGE FLOWERS 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) (2010).