Citation Nr: 1306983 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-41 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to September 1957. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board remanded the issue for further development in June 2012. As the directives were not substantially complied with, the issue is remanded for further development as noted below. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The issue was remanded for further development by the Board in June 2012 to afford the Veteran a VA examination and obtain a medical opinion regarding the Veteran's back disability. The remand instructions ask for a medical examination to determine the current nature of the Veteran's back disability and to obtain an opinion as to whether such is possibly related to service. The examiner was asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current back disorder is related to the claimed back injury from sitting on a tree root in service or the possible pilonidal cyst lancing/surgery that may have occurred during service. The Veteran was afforded a VA examination in October 2012. The examiner performed a physical examination and opined that with reported history of falls, even though Veteran reports he only broke his ribs and did not injure his back, it is difficult to state that the pilonidal cyst caused his degenerative disc disease. The examiner did not address the Veteran's complaints of injury from sitting on a tree root. Additionally, the phrase "difficult to state" is vague and does not meet the criteria requested in the remand instructions requiring the examiner to determine whether it is at least as likely as not (50 percent or greater probability) related to the cyst surgery or the alleged injury. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the Court found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Based on the vague response and the examiner's lack of findings related to his alleged in-service injury, the Board finds that it must return the case to the examiner for additional comment or provide the Veteran with a new examination. 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. If the October 2012 examiner is available, the claims file should be returned to him to allow him to expand his comments regarding the etiology of the Veteran's disability. The examiner should restate his findings, indicating whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability had its onset during service or is causally related to the Veteran's service, specifically to the Veteran's alleged injury from sitting on a tree root or from his pilonidal cyst procedure. Again, the examiner should specifically address the significance of post-service injuries such as being hit by a car with a compound leg fracture and a fall in November 1994 resulting in fractured ribs, and complaints of back pain noted in 1995 with radiology reports showing minimal degenerative changes and mild diffuse osteoporosis. The medical basis and rationale for any opinions should be provided. If the October 2012 examiner is no longer available, the claims file should be forwarded to a physician to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. 2. After completion of the above, review the expanded record and determine if the appellant's claim may be granted. Any additional development deemed necessary, should be accomplished. If the claim remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran 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). _________________________________________________ K. A. BANFIELD 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).