Citation Nr: 1308535 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 07-39 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION A Department of Defense Form 214, Certificate of Discharge or Release from Active Duty, indicates that the appellant served on active duty for training (ACDUTRA) from January 1992 to July 1992, with prior inactive service totaling four months and twenty-nine days. Additional service was rendered subsequently, only a portion of which is verified, and without any indication that it was other than inactive service based on data now of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2006 the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board by its decision of April 16, 2010, denied entitlement to service connection for a low back disorder. The Veteran then moved for reconsideration by the Board but that motion was denied in October 2010. An appeal of the denied claim was then taken to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal jointly moved the Court to vacate and remand the matter for additional Board review. By its order of June 2012, the parties' motion was granted, and the case was returned to the Board. This appeal is REMANDED directly to the RO based on the Veteran's representation by a private attorney. DC. VA will notify the appellant if further action is required on his part. REMAND The basis of the parties' joint motion was that the Board in October 2010 mischaracterized the evidence of record as containing no competent evidence of low back disablement, considering the appellant's complaints of back pain, and in failing to afford the appellant a VA medical examination in light of the referenced mischaracterization, as well as the appellant's prior testimony of spina bifida dating to his birth and a showing of increased lumbar lordosis in service as a possible indicator of inservice aggravation. The parties agreed as well that evidence of a continuity of back pain and an inservice finding in or about March 1992 of an increased lumbar lordosis were sufficient to trigger the VA's obligation to assist the appellant by obtaining a VA medical examination and/or opinion. On that basis, remand to further develop the medical evidence of record is deemed necessary. The Board acknowledges that it is bound by the doctrine of the law of the case. In re Sanford Fork & Tool Co., 160 U.S. 247, 255-56 (1895). See Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and, therefore, the Board is not free to do anything contrary to the Court's prior action with respect to the same claim). However, an exception to the law of the case doctrine arises out of the fact that the law of the case, "must yield to an intervening change in controlling law between the date of the first and the subsequent consideration of the question." Chisem at 528. Notice is taken that the U.S Court of Appeals for the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, slip op. at 13 (Fed. Cir. Feb. 21, 2013). In addition, the record does not sufficiently delineate the dates of military service rendered subsequent to July 7, 1992, nor does it adequately characterize whether the that service was active duty, active duty for training, or inactive duty training. Remand to obtain verification of the dates and characterization of service rendered by the appellant subsequent to July 7, 1992, is required, and to obtain all pertinent service examination and treatment records compiled during that service is required. Accordingly, this case is REMANDED for the following actions: 1. Ascertain the dates of all of the appellant's military service in the Army National Guard of Colorado, the U.S. Army Reserve, or other organization, including specifically all dates of active duty, ACDUTRA, and inactive duty training served therein. Also, obtain for inclusion in the VA claims folder all pertinent service examination and treatment records involving all periods of military service regardless of its characterization. Efforts to obtain these and any other Federal records must continue until the RO obtains all of the records in question or it determines that the records sought do not exist or that further efforts to obtain same would be futile, and, if it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) (2012) must be provided to the appellant and he must then be afforded an opportunity to respond. 2. Thereafter, afford the appellant a VA medical examination in order to ascertain the nature and etiology of any currently shown low back disorder. The VA claims file should be made available to the examiner in conjunction with the examination and the report of that examination should indicate whether in fact the VA claims folder was made available and reviewed by the VA examiner. That examination should entail a complete medical history, a thorough clinical evaluation, and any and all diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to address the following questions, offering a complete rationale for each opinion provided: a) Does the appellant now have spina bifida or residuals thereof? If so, is the appellant's spina bifida a congenital "disease" or congenital "defect?" To assist the examiner, the Board notes that for VA adjudication purposes "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. b) If the VA examiner concludes the appellant's spina bifida is a congenital disease, the examiner should then render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it underwent a permanent increase in severity during military service that followed, be it by injury or not, and if so, whether the permanent increase in severity during service was due to the natural progress of the condition. The significance, if any, of a March 1992 notation in service treatment records of an increased lumbar lordosis, and the appellant's assertion of an inservice back injury in terms of any inservice aggravation should be fully detailed. c) Is there clear and unmistakable evidence (i.e., it is undebatable) that any other currently existing low back disorder of the appellant existed prior to his entrance onto inactive duty training in August 1991 or entry onto active duty for training in January 1992, or any other subsequent, verified period of service? If the answer is yes, is there clear and unmistakable evidence (i.e., it is undebatable) that any preexisting low back disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease? The significance of the March 1992 notation of an increased lumbar lordosis and a claimed back injury due to heavy lifting and work as a mechanic should be fully addressed. Please identify any such evidence with specificity. d) In the event that any of the disorders referenced in (a) through (c) above did not either preexist service or if preexisting were not aggravated in service, is it at least as likely as not (50 percent or more probability) that any such disorder originated in service or is otherwise attributable to service or any event therein, to include claimed inservice back injury from work as a mechanic or in carrying heavy equipment? The significance of the March 1992 note as to an increased lumbar lordosis and a claimed back injury due to heavy lifting and work as a mechanic should be fully addressed. Use by the VA examiner of the at least as likely as not language in responding to the Board's specific inquiry is required. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 3. Lastly, readjudicate the issue remaining on appeal, based on all of the evidence of record, and if any benefit sought on appeal remains denied, the appellant and his attorney should be provided with a supplemental statement of the case and afforded an appropriate period of time to respond, before the record is returned to the Board for further review. The appellant need take no action until otherwise notified. 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). _________________________________________________ M. E. LARKIN 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).