Citation Nr: 1310464 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 08-29 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: John Niles, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from March 1988 to December 1988 and from September 2005 to August 2006 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified at a hearing before a Veterans Law Judge at the Wichita RO in November 2009. A transcript of the hearing has been associated with the Veteran's VA claims folder. In a July 2011 decision, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court), and The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in an August 2012 Order, the Court vacated the July 2011 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Veterans Law Judge who conducted the November 2009 hearing has since retired. Correspondence was sent to the Veteran and his representative in October 2012 inquiring whether they wanted a new Board hearing in conjunction with this appeal. In a December 2012 letter, the Veteran, through his attorney, indicated that he did not want a new hearing. In January 2013, the Veteran filed a claim for service connection for a left ankle disorder, a left knee disorder, scars, a nerve disorder of the bilateral legs, a disability manifested by right elbow pain, and memory loss. He also sought increased ratings for his service-connected right knee disability, left foot disability, and right ankle disability. However, these issues have not yet been addressed by the RO. Accordingly, they are referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the now-vacated July 2011 decision, the Board relied on an April 2010 VA examination report in denying the Veteran's claim for service connection for a back disorder. However, the parties to the Joint Motion found that the April 2010 VA examination report "was insufficient for rating purposes." See the Joint Motion, page 4. Specifically, the parties noted that, when the VA examiner concluded that the Veteran's preexisting spine disability had not been aggravated during his second period of active duty service, she was relying on a July 2006 MRI report that was found to be "not greatly different from" a May 2001 MRI report. Id. at 3. However, the parties observed that the 2006 MRI report "seems to contain additional or change in diagnoses from those rendered in 2001." Id. For example, the parties noted that the 2001 MRI report describes "an effacement of the anterior sac at the fourth and fifth vertebrae and a blockage of the neural foramina at the fourth and fifth vertebra due to degenerative disc disease. Thus, the only area of [the Veteran's] back addressed at that time was the L4-L5 region." Id. at 3. [While not noted in the Joint Motion, the Board observes that the May 2001 MRI report also described an effacement of the anterior thecal sac at L3-L4.] The Joint Motion then observed that the "July 2006 MRI contained diagnoses of moderate to severe foraminal stenosis at L3-L4 with impingement of right L3 nerve and forminal stenosis at L4-L5." Id. The parties therefore concluded that "the MRI results dated prior to [the Veteran's second] period of active military service . . . do not indicate an injury to L3-L4 area as [revealed in] the July 2006 MRI" and the "examiner did not specifically address this new or changed diagnosis in her opinion regarding etiology." Id. In addition, the parties stated that the "April 2010 VA examiner did not address the significance, if any, as to the diagnosis of spinal stenosis to the L3-L4 and L4-L5 area of [the Veteran's] back contained in the July 2006 MRI report, which is in contrast to the 2002 MRI . . . that found that no spinal stenosis was present." See the Joint Motion, page 4. Consequently, this case contains certain questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Therefore, based on the Joint Motion, the Board finds that an additional medical opinion. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his spine since December 2012. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. 2. After completing the development in the forgoing paragraph, the RO should refer the Veteran's claims folder to the April 2010 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any back disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions, as well as the Joint Motion for Remand. The examiner should identify all current back disorders. For each diagnosis identified, he or she should address whether the disorder clearly and unmistakably preexisted a period of military service. If so, the examiner should state whether the preexisting disorder worsened in severity during service and whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented a permanent worsening or "aggravation" of the disorder beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. If any back disorder did not preexist service, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) In rendering his or her opinions, the examiner should address whether the L3-L4 and L4-L5 spinal stenosis that was noted in the July 2006 MRI report represents (1) an additional disability that was incurred during the Veteran's second period active duty service (2) is the natural progression of a preexisting spine disability; (3) the aggravation of a preexisting spine disability; or (4) is unrelated to the Veteran's active duty service and preexisting spine disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 or by the 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. 2011). _________________________________________________ JESSICA J. WILLS 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).