Citation Nr: 1310708 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 05-25 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. This case was previously before the Board in August 2012. At that time, the Board remanded the case for further development. 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 Unfortunately, another remand is required for compliance with the Board's previous remand. Stegall v. West, 11Vet. App. 268 (1998). In August 2012, the Board remanded this service connection claim for further development efforts. As part of this development, the RO/AMC was instructed to provide the Veteran with the appropriate VA examination. In the VA examination, the VA examiner was to address the nature and etiology of the Veteran's current back disability. Although the Veteran was afforded a VA examination in October 2012, the Board finds that the examination is inadequate for the purposes of adjudication. The VA examiner failed to provide an opinion that adequately addressed the Board's remand instructions. While the examiner addressed the question of whether the claimed disability was incurred in service, and whether it was caused by the Veteran's service-connected diabetes mellitus, the examiner did not clearly opine as to whether the current back disorder is aggravated by the service-connected diabetes mellitus. An addendum opinion to the October 2012 VA examination is necessary prior to properly adjudicating the back disability claim. In addition, all relevant ongoing VA treatment records dating since February 2011 should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA treatment records dating since February 2011. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of the onset and continuity of symptoms of his current back disability, and how it is affected by his service-connected diabetes mellitus. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 3. After the above development is completed, forward the complete claims folder to the VA examiner who provided the October 2012 VA back examination and opinion report. If the examiner who performed the October 2012 VA examination is no longer available, the matter should be referred to another qualified person for the requested opinion. If another examination is necessary in order to provide the requested opinions, then an examination should be scheduled. The examiner should review the claims file, and such review should be noted in the report. The examiner is asked to specifically address the following: Is it at least as likely as not that the Veteran's current low back disability is aggravated by the service-connected diabetes mellitus? A complete rationale for all opinions should be set forth in the report. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. Note: The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. 4. Thereafter, the RO/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 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 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).