Citation Nr: 1302000 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 02-15 167A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a shortened right leg. REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran had active service from June 1948 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of May 2002. In a decision dated in January 2005, the Board denied the Veteran's appeal. The Veteran then appealed his claims to the U.S. Court of Appeals for Veterans Claims (Court). In a Joint Motion to the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded; a March 2006 Court order granted the joint motion. After remanding the appeal in April 2007, the Board again denied the claims in March 2009. The Veteran again appealed to the Court, which again, pursuant to a Joint Motion for Remand (JMR) filed by the parties, vacated and remanded the Board decision in February 2010. In January 2012, the appellant appeared at a videoconference hearing held before the undersigned. Thereafter, the Board issued a decision in April 2012 which reopened the Veteran's claim to entitlement to service connection for a low back disability and remanded that issue, along with the other two issues currently in appellate status, for further development. As addressed in further detail below, since it does not appear that such development has been completed, the Board must again remand these issues to the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that in late 1948, he injured his back while trying to load a piece of artillery. As noted in the prior remand, service treatment records show that the Veteran was seen in September 1948 for the complaint of lumbar back pain. The Veteran also states that in December 1950, he and another soldier became entangled during the course of a parachute jump, causing an abnormal landing. He states that the other soldier sustained severe injuries, including a broken back, and was hospitalized. The Veteran sustained less severe injuries, but nevertheless, the next day, experienced severe bruising on his right side, and had right leg and hip pain. He states that he was treated several times on an outpatient basis. Medical evidence of record includes July 2003 X-rays which demonstrate degenerative spurring in the hip joints. While the Veteran was afforded a VA examination in July 2003, the examiner failed to provide a detailed rationale when he authored a negative opinion as to the Veteran's low back and right hip conditions, and the claimed in-service parachute injury was not discussed. To that end, the Veteran submitted a study of typical parachute injuries occurring in the course of 250,000 military parachute school jumps. According to this report, a parachutist had a one percent chance of injury in any one parachute descent. Typical injuries included, as potentially pertinent to this appeal, strain of the right rectus muscle and contusions and separation of the acromioclavicular joint. A "silent fracture" (meaning that it was relatively asymptomatic) of the upper third of the fibula was also noted as a typical injury, although no mention of any associated leg length shortening was reported. The Board found in April 2012 that the Veteran had to be afforded a VA examination, with nexus opinions, to include a claims file review by the examiner, and which addressed the above concerns. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370, 374-75 2002); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). However, following a review of the Veteran's claims file, and the Virtual VA system, it does not appear that this development has been completed. As such, the issues on appeal must be remanded once again so as to provide a VA examination to address these issues. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions); 38 C.F.R. § 19.9 (2012) (if any action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to ascertain any current diagnoses with regard to the low back, right hip, and a shortened right leg, and determine whether it is at least as likely as not that any such disability was of service onset, or is otherwise related to service. Specifically, the examiner must give due regard to the medical evidence of record, including the private medical opinions dated in September and October, 2001, and the Veteran's contentions concerning a back injury in 1948 and a parachute injury in 1950. The information contained in a parachute school survey should also be taken into consideration, in addition to all other relevant evidence of record. Finally, the examination should also address whether it is at least as likely as not that any diagnosed low back or right hip condition(s) is/are proximately due to, or were aggravated (permanently worsened) by the Veteran's shortened right leg. (No opinion as to the outcome of the claim for service connection for a shortened right leg is to be implied by this request; the opinion is requested solely to avoid another remand for such examination, should service connection be granted.) The entire claims folder must be made available to the examiner in conjunction with the examination, and the complete rationale for all opinions reached must be included in the final examination report. 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 as it is to find against it. 2. After assuring compliance with the above development, and any other notice and development action required by law, the RO should review the claims on appeal. All claims must be reviewed on a de novo basis. If the claim for service connection for shortened right leg is granted, the issue of secondary service connection (including by aggravation) for the right hip and low back conditions should be fully developed and addressed before the appeal is returned to the Board. If any claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. 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. 2012). _________________________________________________ Michael J. Skaltsounis 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) (2012).