Citation Nr: 1311094 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-35 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1993 to June 1993, and from August 1995 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the VA Regional Office (RO) in St. Louis, Missouri. This issue was remanded by the Board for further development in August 2009, May 2011, and May 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that the Veteran's claim must again be remanded for additional development necessary prior to final decision. The Veteran seeks service connection for a low back disability. As noted in the prior remand, there is some evidence that the Veteran had a pre-service injury to his back. He did not, however, have a back disability noted upon induction into the Marine Corps in 1995. The Veteran was treated for back problems during service, and there was a clear notation of a clinical abnormality of the spine on separation. Following service, the Veteran had a work-related back injury in 2005. He contends that his in-service back problems were the cause of or contributed to his post-service back injury. In May 2012, the Board remanded the Veteran's claim to obtain a clarified opinion with rationale from the January 2011 examiner regarding the Veteran's low back disability. The Board specifically requested a clarified opinion as to whether the evidence of record (1) clearly and unmistakably demonstrates the Veteran had a back disability that existed prior to service, and (2) clearly and unmistakably demonstrates that any pre-existing back injury was not aggravated by service. In rendering any opinions, the examiner was asked to cite to specific contemporaneous medical evidence as the basis for such opinions. If the examiner determined that the contemporaneous medical evidence did not clearly and unmistakably reflect that the Veteran's back disability pre-existed service, the examiner should provide an opinion as to whether any of the Veteran's currently diagnosed back disabilities were caused by or incurred during his active duty service. The Veteran's claims file was sent to the examiner, and she listed some of the pertinent medical history in her report. She ultimately opined "that the [V]eteran's back disability, although now chronic and permanent with an increase in severity, [it] is not due to or as a result of [his] military service." The examiner further indicated that a "preexisting injury was reported by the [V]eteran and documented in his service records," but she did not provide a clear opinion as whether the preexisting back disability clearly and unmistakably did not undergo a chronic and permanent increase in severity during service. It appears as though she is trying to so state, but it is unclear in the context of the opinion as a whole. In light of the July 2012 supplemental opinion from the January 2011 VA examiner, the Board finds that there has not been substantial compliance with the May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. In light of the above, the Board finds that the Veteran's claim must again be remanded for an opinion regarding his low back disability. The Board is of the opinion that the Veteran should be afforded a new examination, and if possible, with someone who has not previously examined the Veteran, to determine the nature and etiology of his low back disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a new VA examination with an examiner with the appropriate level of expertise, regarding his low back disability, and if possible, this examiner should not be someone who has previously examined the Veteran. The Veteran's claims file, and any pertinent evidence in Virtual VA, should be forwarded to the examiner and should be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current disability of the back. As to any pertinent disability identified on examination, the VA examiner should respond to the following inquiries: a. Did any such disability of the back clearly and unmistakably preexisted service? If so, the examiner should cite to specific contemporaneous medical evidence that supports his or her opinion. b. With respect to any back disability that the examiner believes clearly and unmistakably preexisted service, the examiner should provide an opinion regarding whether such disability underwent a chronic and permanent increase in severity during or as a result of service that would be beyond the normal progression of the disorder. c. If the opinion is that any diagnosed back disability did not undergo such an increase, the examiner should state whether is it clear and unmistakable that it did not. Again, specific medical evidence should be cited with regard to any opinions provided. d. If the examiner determines that the contemporaneous medical evidence does not clearly and unmistakably reflect that the Veteran's back disability pre-existed service, the examiner should provide an opinion as to whether any of the Veteran's currently diagnosed back disabilities were caused by or incurred during his active duty service. A discussion of the complete rationale for all opinions expressed, including reference to the pertinent service treatment records, should be included in the examination report. 2. Thereafter, review the claims folder to ensure that the foregoing development has been completed. In particular, review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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 LANE 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).