Citation Nr: 1126945 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 08-37 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from October 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. On his November 2008 substantive appeal, via VA Form 9, the Veteran requested a hearing before a Decision Review Officer at the local RO. He was scheduled for a hearing in November 2008 and notice of the hearing was sent to the Veteran's address of record. However, the Veteran cancelled the hearing and did not provide good cause as to why a new hearing should be scheduled. The Board, then, finds that all due process has been satisfied with respect to the Veteran's right to a hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 When the Board last reviewed the Veteran's claim, it noted his contentions that his current back condition is the result of an in-service back injury he incurred in November 1953 at Fort Chafee, Arkansas, during basic training. Specifically, the Veteran has reported that he was treated for low back pain during service, and he continues to have episodes of pain. The Board further noted that while the Veteran's service treatment records were not of record and unavailable, the Veteran provided competent evidence of an in-service back injury. As a result, the Board determined that the record contained credible lay evidence of continuity of symptomatology since service, as well as a current diagnosis of a lumbar strain. As such, in March 2010, the Board remanded the case for a VA examination in order to determine the likelihood that any currently manifested back disability is etiologically related to service. See 38 C.F.R. § 3.159(c)(4) (2010). On remand, the Veteran underwent a VA examination in December 2010. Upon examination, the examiner diagnosed a lumbar spine compression fracture at L4 with bioconcave deformities and osteophytes, as well as chronic low back pain. In an addendum following the aforementioned examination, the examiner indicated that he reviewed the Veteran's claims file, noting that his service treatment records were not within the file. The examiner ultimately opined that, since there are no service treatment records available, the Veteran's current lumbar spine condition is less likely than not related to service. The Board finds that the medical opinion provided by the December 2010 VA examiner is inadequate, as the rationale provided by the examiner is only based on the lack of service treatment records and the examiner did not consider the Veteran's reported lay history of an in-service back injury. Accordingly, a new medical opinion is necessary to make a fully informed decision in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO should arrange for the Veteran's claims folder to be reviewed by the examiner who prepared the December 2010 VA examination and subsequent addendum report for the purpose of preparing another addendum that addresses the Veteran's current lumbar spine disability. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review of the entire record in the examination report. The examiner should offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) or unlikely (e.g., less than 50 percent probability) that the Veteran's lumbar spine disability had its onset in service, is the result of active service or any incident therein, or is otherwise related to his period of active service. The examiner should be informed that the lack of contemporaneous medical evidence of a back problem during service does not render the Veteran's report of in-service treatment inherently incredible. Instead, in answering the foregoing, the examiner should consider other variables, to include, but not limited to, (1) the proximity between discharge from service and the first time the Veteran is shown to have a back problem, (2) the level of severity of the Veteran's back disability when first shown by the evidence of record, and (3) the information provided by the Veteran regarding the onset and progression of his back disability. The examiner should also consider the September 1963 medical evidence of subacute lumbosacral strain, as well as the November 1999 private treatment record which notes that the Veteran reportedly injured his back by twisting and bending while painting with a roller and that symptoms began two weeks prior to treatment. A rationale for all opinions expressed should be provided. If the requested medical opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. Thereafter, readjudicate the claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant 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. 2010). _________________________________________________ A.J. TURNIPSEED 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) (2010).