Citation Nr: 1311769 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-03 553A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the RO in Detroit, Michigan. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Although the Veteran requested a Board hearing in July 2009, he later withdrew the request in a September 2009 VA Form 9. There are no outstanding hearing requests of record. The Veteran also returned his VA Form 9 in September 2009, more than one year after the rating decision and more than 60 days after the Statement of the Case was sent to him. Nevertheless, the RO accepted the February 2008 VA Form 21-4138 in lieu of the VA Form 9. In December 2011, the Board found that new and material evidence had been received sufficient to reopen the claim for service connection for a low back disorder, and denied the claim on the merits. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2012 Memorandum Decision, the Court vacated the Board's decision, and remanded the claim to the Board for the development specified below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the October 2012 Memorandum Decision, the Court found that the Board erred in its determination that the July 2009 VA medical examination was adequate. The Court found that the July 2009 VA medical examination was inadequate because the VA medical examiner did not consider the lay evidence in the record showing that the Veteran had back pain before 1974. The Court also concluded that the VA medical examiner inaccurately relied on the premise that the Veteran had a single medical visit in service for his back injury when there is evidence of at least two visits. The Court further found that the VA medical examiner used an unclear evidentiary standard when rendering the opinion. In consideration thereof, the Court directed the Board to obtain a new medical nexus examination or opinion. In order to comply with the Court's Order, the Board finds that remand is necessary. Accordingly, the issue of service connection for a low back disorder is REMANDED for the following actions: 1. Schedule the Veteran for a VA medical examination for the claimed low back disorder. All relevant documents (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) should be made available to and reviewed by the examiner in rendering the opinion. The examiner should confirm that the record was reviewed. Based on review of the record, the examiner should provide the following opinion: Is it at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's low back injury and related symptomatology during service is causally or etiologically related to any currently diagnosed low back disorder? In rendering the medical opinion, the examiner is asked to consider the Veteran's service treatment records reflecting treatment at the central post dispensary in Fort Lee, Virginia, and at the physical therapy clinic at Kenner Army Hospital in June 1967. The examiner should also note and consider post-service lay evidence relating the onset of the Veteran's back pain to service (i.e., before 1974). 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 evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of causation as it is to find against it. Note: A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to speculation, the examiner should so state, and explain why that is so. 2. After any additional notification and/or development deemed necessary is undertaken, adjudicate the issue of service connection for a low back disorder. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case with an appropriate period of time for response by the Veteran and the representative. Thereafter, return the case to the Board for further appellate consideration, if in order. This case is REMANDED for further evidentiary development. 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 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). _________________________________________________ J. PARKER 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).