Citation Nr: 1309852 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 05-00 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back disability, to include sciatica. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran had active service from April 1969 to April 1971, for which he received an honorable discharge, and from July 1981 to February 1984, for which he received an other than honorable discharge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2005, the Veteran was afforded an informal conference with a Decision Review Officer. In March 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The conference report and hearing transcript are associated with the claims folder. In May 2010, September 2011, and August 2012, the Board remanded this issue to the agency of original jurisdiction (AOJ) for further evidentiary development. The appeal is, AGAIN, 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 August 2012 remand directed that the Veteran undergo a VA examination of his spine. The remand directives stated, in pertinent part, that the examiner determine the medical probability that any diagnosed lumbar spine disability was related to the Veteran's first period of service. The examiner was then advised, in bold face, that he or she must consider the Veteran's competent and credible statements as to a history of continuous back pain since service. The examiner was directed to address December 1970 service treatment records, September 1999 X-ray studies and a March 2008 MRI report. The examiner was also directed to review and address the relevance of evidence contained at a National Institutes of Health (NIH) webpage. The web address was provided for his or her reference. The examiner was then directed to provide a complete rationale for all opinions expressed. The Veteran underwent the requested examination in September 2012. The examiner was Dr. P.A.S., an orthopedist who has twice previously examined the Veteran in connection with this claim. On both occasions, Dr. S. failed to provide any supporting rationale for his conclusions. Dr. S. examined the Veteran, diagnosed degenerative disc disease of the lumbar spine, and came to the following conclusion: "I agree with [an October 2011 VA examiner] after review it is less likely that his current back condition is related to service but rather natural age progression." This is essentially the same conclusion reached by Dr. S. in May 2009 and May 2010, and, as on those occasions, Dr. S. has not provided any support for his findings. His conclusion also fails to address the competent and credible lay evidence, as well as other evidence potentially favorable to the Veteran, despite the Board's explicit instructions to do so. As a result, his examination report is again inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998)( the Board errs as a matter of law when it fails to assure substantial compliance with remand orders). A new examination must be scheduled with a specialist in orthopedics other than Dr. S., since his repeated failure to follow the Board's specific and plainly worded instructions has contributed greatly to the inordinate amount of time it has taken to adjudicate this claim. The Veteran filed a claim for VA vocational rehabilitation benefits in August 2003. These records, and any additional VA records generated since August 2012, must be obtained and made available for Board review. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records related to the Veteran's lumbar spine disorder since August 2012. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain and associate with the claims folder any vocational rehabilitation file for the Veteran that may exist. 3. After the aforementioned development has been completed, schedule the Veteran for a VA spine examination by an appropriately qualified medical doctor other than a doctor who has previously examined the Veteran. 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. Any indicated studies must be performed. After reviewing the claims folder and conducting a physical examination of the Veteran, the examiner must determine whether it is at least as likely as not (probability of 50 percent or greater) that any diagnosed lumbar spine disability had its onset during the Veteran's service or is otherwise related to the Veteran's service. The examiner must consider and accept as fact, the Veteran's credible March 2010 testimony as well as his credible reported history of continuous back pain since the documented December 1970 in-service treatment. The examiner must consider and comment on the Veteran's December 1970 service treatment records and post-service VA outpatient treatment records, namely the September 1999 x-rays, and the March 2008 MRI report. The examiner must review and address the relevance, if any, of the following website, as requested by the Veteran's representative: http://www.nlm.nih.gov/medlineplus/ency/article/000442.htm. 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). 4. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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 is appealable to the Court. 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).