Citation Nr: 1122011 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 03-35 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a thoracic spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1968. This matter arises before the Board of Veterans' Appeals (Board) from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the Veteran's claim was subsequently transferred to the VA RO in St. Paul, Minnesota. Notably, this claim was previously denied by the Board in March 2009, but the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Subsequently, the Veteran, through his representative, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand (Joint Motion) requesting that the Board's decision be vacated and remanded. In June 2010, the Court granted the motion and remanded the case to the Board for further appellate review. The case now returns to the Board following the Court Order. 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 After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claim. Although the VA afforded the Veteran two compensation and pension examinations during the appeal period, neither was adequate to determine whether his claimed back disability is related to his period of active military service. More specifically, the June 2007 examiner did not discuss why there was no correlation between the Veteran's minimal degenerative joint disease and his time in service beyond mentioning that the Veteran was not experiencing symptoms on the date of the examination. Therefore, the examiners' reports are inadequate and a new examination is required with respect to the Veteran's claimed disorder before the claim can be readjudicated. The new examination should consider whether the presence of any degenerative disk disease, based on x-ray findings, is a disability, notwithstanding the fact that the Veteran may not be experiencing symptoms at the particular point in time. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the etiology or onset of his claimed thoracic spine disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should specifically state what thoracic spine disability the Veteran is diagnosed with, if any, and whether that disability is at least as likely as not (i.e., probability of 50 percent) etiologically related to the Veteran's period active military service. If the Veteran is not experiencing any symptoms at the time of the examination, the examiner should still explain if the Veteran carries a diagnosis for a thoracic spine disability. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 2. After any additional development deemed necessary is accomplished, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2010). _________________________________________________ John E. Ormond, Jr. 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).