Citation Nr: 1309850 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-00 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from February 1955 to December 1957 and from January 1960 to November 1962, with additional Reserve service including several periods of active duty for training and inactive duty for training at various times from 1970 to 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In May 2012, the Veteran testified before the undersigned at a Board hearing at the RO. A transcript of the hearing is of record. This matter was previously before the Board in August 2012 at which time the Board reopened the claim for service connection for a low back disorder and remanded the underlying merits of the claim for further development. As is discussed below, there has not been substantial compliance with the Board's August 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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 As noted above, the issue on appeal of entitlement to service connection for a low back disorder was previously before the Board in August 2012 at which time the case was remanded for additional evidentiary development. Such development directed that the Veteran be afforded a more contemporaneous VA examination in order to clarify the etiology of his claimed low back disability. The examiner was specifically requested to include specific discussion of the conflicting medical evidence of record, to include the positive nexus opinions rendered by a private physician in January 2011 and June 2012, and a negative nexus opinion rendered by a VA examiner in October 2009, with an addendum in February 2011. The new examination was conducted in September 2012. Unfortunately, the examiner did not discuss or comment on the conflicting medical evidence of record as identified above. Although the September 2012 VA examiner issued an addendum later in September 2012, it was only to confirm that the Veteran's claims file had been reviewed in detail for the examination. Thus, a new remand is required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. Based on the foregoing, 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. Obtain an addendum opinion from the September 2012 VA examiner that addresses and includes specific discussion of the conflicting medical evidence of record, to include the January 2011 private physical statement (finding that the Veteran's current back disorder was directly related to the injury sustained in March 1977), the October 2009 VA examination and February 2011 addendum (finding that it was less likely than not that the Veteran's current low back disorder was related to his in-service injury) and the June 2012 private physician statement (indicating that the Veteran's back disorder had its onset in March 1977). It should be clearly indicated whether the disc pathology appears to have had its onset during training, or whether the injury during duty was acute and resolved prior to subsequent back pathology being noted. A complete rational must be given for all opinions and conclusions expressed. If the prior examiner is unavailable, the records should be forwarded to a similarly situated examiner for entry of an opinion. If it is determined that an opinion cannot be entered without additional examination, such examination should be scheduled. 2. Thereafter, readjudicate the Veteran's claim for service connection for a low back disorder in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case and be given an opportunity to respond thereto. The appellant and his representative have 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 D. LYON 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).