Citation Nr: 1310644	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  08-07 333	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a back condition.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The Veteran had active service from December 1973 to December 1975.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

This appeal was previously before the Board and the Board remanded the claim in August 2011 for additional development.  The case has been returned to the Board for further appellate consideration.

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

Service treatment records dated in May 1974 and November 1974 reflect back pain complaints.  When the Veteran was examined for VA purposes in August 2011, to obtain an opinion regarding any relationship between service and current disability, the examiner did not link the Veteran's current low back disability to service, in part, because he observed only a single complaint in service in May 1974.  The examiner apparently did not notice the November 1974 record reflecting "back & side pain," together with cough, headache, rhinorrhea complaints with a diagnostic impression of "musculoskeletal pain" and upper respiratory infection.  Because of this inaccuracy, it will be necessary to obtain clarification.  

Accordingly, the case is REMANDED for the following actions:

1.  The Veteran's claims folder should be returned for clarification to the clinician who conducted the August 2011 VA medical examination.  After re-familiarizing himself with the record, and noting there were two occasions during service when the Veteran was seen with back complaints (May 1974 and November 1974), as well as the 1975 occasion the Veteran reported to him concerning a move to another barracks, the examiner is again asked to express an opinion as to whether it is at least as likely as not (i.e. at least a 50 percent probability) that the Veteran's current disability had its onset in, or is otherwise causally related to his active service and the back pain that the Veteran experienced therein, to include the May 1974 and November 1974 recorded complaints of back pain, and an undocumented 1975 complaint during a barracks move. 

A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 

If the examiner who conducted the August 2011 VA examination is unavailable, the requested opinions should be obtained from another appropriately qualified clinician.  If a new examination is deemed necessary, then one should be conducted.

2.  The RO/AMC shall then re-adjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

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).