Citation Nr: 1305367 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 04-28 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for degenerative joint disease and degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity, to include as secondary to service-connected muscle strain of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to March 1987, including active duty for training in September 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing in January 2007, but did not appear. The hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In April 2010, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court issued a memorandum decision that vacated and remanded the April 2010 Board decision for further development and consideration. In July 2012, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 The Veteran seeks service connection for degenerative joint disease and degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity, to include as secondary to her service-connected muscle strain of the low back. Pursuant to the Court's January 2012 order, the Board remanded the appeal in July 2012, with instructions for the RO to obtain a new VA opinion addressing whether the Veteran's degenerative joint disease and/or degenerative disc disease with radiculopathy of the left lower extremity had been aggravated by her service-connected muscle strain of the low back. The Board further instructed that the examiner was to reconcile any contradictory evidence, including the May 1991 private orthopedist's opinion. A VA opinion was provided in August 2012. The opinion is inadequate because the examiner did not provide any clinical rationale to support his conclusion, did not discuss any medical evidence, and did not reconcile any contradictory evidence, to include the May 1991 opinion, as directed in the July 2012 remand. As there is noncompliance with the Board's remand directives, the Board has no discretion and must remand the claim. Stegall, 11 Vet. App. at 268. On remand, contact the Veteran and ask that she identify any additional, pertinent VA or non-VA treatment records that are outstanding. Any such records must then be added to the file. See 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and contact information for all private treatment received for the disability at issue. Obtain copies of all such records not already of record, including any pertinent VA treatment records dated since August 2012. Any negative response must be in writing and associated with the claims file. 2. Send the claims file for a VA medical opinion by an appropriate medical professional, other than the examiner that provided the August 2012 opinion. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's degenerative joint disease and/or degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity: a) are related to service; b) manifested within one year of service discharge; or, c) were either caused or aggravated by the service-connected muscle strain of the low back. The opinion must include consideration and discussion of all of the pertinent medical evidence and must reconcile any contradictory evidence, to specifically include the May 1991 private opinion. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the issue on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2012). _________________________________________________ RONALD W. SCHOLZ 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).