Citation Nr: 1304490 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 95-07 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a chronic back disorder. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION Following reserve component enlistment in June 1971, the appellant had initial active duty for training (IADT) from August 1971 through December 1971, according to the NGB Form 22 of record, and had reserve service in the Maine Army National Guard thereafter through June 1991, including multiple periods of verified active duty for training (ACDUTRA) and verified and unverified inactive duty for training (INACDUTRA). This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied service connection for disabilities of the back, left ankle, left knee, and stomach, and a psychiatric disorder. In October 1996, the Board remanded the claims. By a subsequent July 1999 decision, the Board denied the appellant's claims. The appellant appealed the Board's July 1999 decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2001 Order, the Court vacated the July 1999 Board decision, and remanded the matters to the Board for readjudication. Thereafter, the Board remanded the claims to the RO in August 2001 and in September 2003. By a July 2004 decision, the Board denied the claims. The appellant appealed the Board's July 2004 decision to the Court. Pursuant to a Joint Motion which indicated that more complete explanation of the reasons and bases for the denials was required, the Court vacated the July 2004 Board decision, and remanded the matter to the Board for readjudication. The Board subsequently denied the appellant's claims in a July 2005 decision. The appellant appealed the July 2005 Board decision to the Court. By an October 2007 memorandum decision, the Court noted that the appellant had abandoned his appeal as to the claims of service connection for residuals of a left ankle injury, residuals of a left knee injury, a chronic stomach disorder as secondary to a chronic back disorder, and a psychiatric disorder secondary to a chronic back disorder. With respect to the remaining claim of service connection for a chronic back disorder, the Court found, in pertinent part, that the Board did not provide adequate reasons or bases for the finding that a private medical report from a Dr. G had less probative value than the other medical evidence of record. Therefore, the Court vacated the July 2005 Board decision to the extent it denied the back disorder claim, and remanded the claim for further development and readjudication. Thereafter, the Board remanded the claim to the RO in April 2008. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND In the April 2008 remand, the Board, in pertinent part, requested that the RO afford the appellant an examination to determine the current nature and etiology of his chronic back disorder. The record shows that the RO attempted to afford the appellant an examination on three occasions, and each time the appellant failed to report. However, the record shows that the notice of each examination had not been sent to the appellant's current address. Indeed, during the July 2012 Board hearing, the appellant testified that he had not received notice of any of the examinations and expressed his willingness to report to an examination. Given the above, the RO should afford the appellant an examination, in compliance with the April 2008 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The RO should advise the Togus VA Medical Center (VAMC) of the appellant's current address, as reflected most recently in the RO's June 2012 notice of Board hearing. Furthermore, in addition to the medical evidence previously highlighted in the April 2008 remand, the examiner should also consider a medical opinion from Dr. P that was received by the RO in May 2008. Accordingly, the case is REMANDED for the following actions: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Following completion of the above, schedule the appellant for an examination to determine the current nature and etiology of his chronic back disorder. Advise the VAMC of the appellant's current address, as reflected in the June 2012 notice of Board hearing. The claims folder should be made available to the examiner for review of pertinent documents therein in connection with the examination; the examiner must indicate that the claims folder was reviewed. Following evaluation of the appellant, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the appellant's chronic back disorder was incurred during military service; to specifically include, in April 1989 during a period of ACDUTRA. In making this determination, the examiner should note and discuss Dr. G's 2001 opinion, the 2002 VA medical examination, and Dr. P's 2008 opinion. The examiner should also note and discuss the appellant's report of having had symptoms since the April 1989 injury. A complete rationale should be provided for any opinion. If the examiner is unable to provide any of the requested opinion(s) without resorting to speculation, it should be so stated. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefit requested on appeal is not granted to the appellant's satisfaction, the appellant and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in May 2012, and provided an opportunity to respond. 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). _________________________________________________ BARBARA B. COPELAND 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).