Citation Nr: 1126899 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 05-21 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a chronic back disorder, to include ankylosing spondylitis. REPRESENTATION Veteran represented by: Theodore C. Jarvi, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from September 1962 to November 1962, and from November 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In November 2007, the Veteran presented hearing testimony before the undersigned Veterans Law Judge at a Travel Board hearing at the RO. A transcript is of record. This claim was previously denied by the Board in July 2009. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2010, the Veteran's attorney and the VA General Counsel submitted a Joint Motion for Remand (Joint Motion) requesting that the Board's July 2009 decision be vacated and remanded for readjudication. In a November 2010 Order, 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's Order. Since the case has returned to the Board, additional evidence from the Veteran has been received in support of his appeal, which was accompanied by a waiver of his right to its initial consideration by the RO. 38 C.F.R. §§ 19.9, 20.1304(c) (2010). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the October 2010 Joint Motion, the parties agreed that the Board had not provided an adequate statement of reasons or bases for its determinations regarding the Veteran's claim. In this regard, the parties found that the Board did not take into consideration in its analysis a favorable private medical opinion dated in May 2005. The parties also concluded that the Board erred in finding that VA had satisfied its duty to assist because there was an inadequate medical examination on which the Board relied in its decision. Specifically, the parties found the examiner's opinion inadequate because the examiner relied on the absence of a documented severe injury in service as the basis of his conclusion and did not consider the Veteran's lay account of a combat-related back injury, as required by 38 U.S.C.A. § 1154(b). The parties further found that the Board did not consider the Veteran's testimony that he has experienced a continuity of back pain symptomatology since service. In consideration of the foregoing, as well as the recently submitted evidence in support of the claim, this case must be remanded for further medical examination and medical nexus opinion by a physician specialist with respect to the Veteran's claim for a chronic back disorder. The Board will address any favorable medical opinion evidence, as well as the Veteran's lay account of a continuity of back pain symptomatology since service, when a final decision is issued. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate medical examination by a physician specialist. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. In addressing the questions below, the examiner's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder, to include prior examination reports, and current examination and interview of the Veteran, the examiner should identify the appropriate diagnosis or diagnoses for any back disorder affecting the thoracolumbar and/or cervical spine which has been demonstrated by the Veteran since filing his claim in October 2003. b. Based on review of the claims folder, to include prior examination reports, and current examination and interview of the Veteran, the examiner should state, for each diagnosis of a back disorder, whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the identified back disorder was initially manifested in, or caused by, service; or was manifested as a chronic disability during the first year after separation from service; or whether such a relationship to service or initial chronic manifestation within the first post-service year is unlikely (i.e., less than a 50-50 probability.) c. If the examiner believes that the Veteran has a back disorder which was present at entrance into service, the examiner should opine as to whether there is clear and unmistakable evidence (i.e., obvious or manifest) that such disorder developed prior to service, and, if it did, whether there is also clear and unmistakable evidence (i.e., obvious or manifest) that any increase in severity of symptoms during service represented mere natural progression of the pre-existing disorder as opposed to an aggravation of the disorder. d. The examiner should discuss evidence contained in the Veteran's STRs, post-service lay and medical evidence, prior examination reports, and any relevant medical principles in support of his or her conclusions. In rendering his or her opinion, the examiner must accept the Veteran's lay account of having sustained a back injury during his combat service in Vietnam, although not documented in the STRs, and specifically include discussion of the private medical opinions of record dated in May 2005 and May 2011. The examiner must also confirm that the claims folder (which comprises three volumes) was reviewed. e. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. f. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. g. Note: The examiner must provide a rationale for any opinion expressed and articulate the reasons for arriving at his or her conclusion. It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the examiner should clearly and specifically so specify in the report, and explain why this is so. h. If, and only if, the Veteran does not report for the scheduled examination, provide an opinion based on review of the claims folder without additional examination. 2. After the above development has been accomplished to the extent possible, the 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 and given an appropriate period of time for response. The case should then be returned to the Board, if in order. The purpose of this remand is to obtain additional development and ensure due process. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).