Citation Nr: 1309998 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 99-08 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine, claimed as a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from March to September of 1958, from May 1964 to May 1967, and from November 1990 to February 1991. He also served in the Georgia National Guard until April 1991. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision issued by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). That rating decision found that new and material evidence had not been received to reopen a previously denied claim for service connection for a back disorder. In an August 2002 decision, the Board reopened the claim. Additional development of the reopened claim was deemed necessary, and the Board remanded this case in November 2003, June 2006, October 2009, and May 2010. In October 2011, the Veteran and his spouse provided testimony before the undersigned at a hearing in Washington, D.C.; a transcript of that hearing is of record. In a December 2011 decision, the Board denied the claim. The Veteran entered a timely appeal to the U. S. Court of Appeals for Veterans Claims (Court). By Order dated in June 2012, pursuant to a joint motion, the Court remanded the decision to the Board for readjudication. 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 parties to the joint motion found the VA medical opinion that formed the basis for the Board's decision was inadequate because it failed to reflect consideration of the Veteran's entire medical history, specifically the Veteran's 32-day in-service hospitalization following an injury from lifting a foot locker. Proper resolution of this issue requires another opinion. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to assist in obtaining any outstanding records concerning evaluation or treatment of any DDD or condition of the low back by specifying dates, locations, and providers of this treatment. After allowing an appropriate time for response, attempt to obtain the identified records. 2. Upon receipt of all additional records, refer the file to the VA medical examiner who conducted the February 2003 VA examination, with May 2007 addendum opinion, for another opinion that again expresses whether it is at least as likely as not there is an etiological link between active service, and in particular the October 1966 back injury, and current lumbar DDD. As instructed in the joint motion for remand approved by the Court, in providing the opinion, the examiner must comment on the Veteran's relevant medical history to include his 32-day in-service hospitalization in October and November 1966 at Ft. Belvoir, Virginia, that followed back complaints incurred after lifting a heavy foot locker, and concluded with a diagnosis of acute lumbosacral strain. If the physician is not available, then provide the file to another qualified individual for the requested opinion. If it is necessary to examine the Veteran to obtain the opinion, that should be arranged. A clear rationale for all opinions should be provided, which should include a discussion of the facts and medical principles involved. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or because additional information was needed. If it is determined that additional information is needed, the examiner should state what information is needed in order to offer an opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definitive opinion can be obtained.) Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After the requested development has been completed, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).