Citation Nr: 1314524 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-32 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston THE ISSUE Entitlement to service connection for residuals of a spinal cord injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to August 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran later testified before the undersigned Acting Veterans Law Judge at a December 2012 video-conference hearing. A transcript of the hearing is of record. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 This case was previously before the Board in December 2011 when the claim on appeal was reopened and remanded for additional development that included the obtaining of an addendum opinion from the examiner who conducted a previous evaluation in August 2008, or, in the alternative, a new examination. It was requested that the examiner identify all back disorders and state (for each condition) whether it was at least as likely as not that such was directly related to the Veteran's military service, to include consideration as to whether the condition initially manifested or had its onset in service; whether the symptomatology shown in service was causally or etiologically related to any current back disorder; or whether such causal or etiological relationship or initial onset was unlikely. If the examiner believed that the Veteran had a back disorder that preexisted service, it was requested that he or she discuss whether there was aggravation during service of the back condition. A review of the record reflects that a new evaluation was conducted by VA in April 2012. The examiner noted that '[g]eneral remarks as a medical opinion only [were] asked for and a reexamination [was] not necessary." The examiner's opinions were not favorable to the Veteran's claim. At the December 2012 video conference hearing, the Veteran expressed his dissatisfaction with the April 2012 evaluation. The examiner reportedly dismissed him within 30 seconds and based the opinions provided without actual examination of the Veteran himself. (Hrg. tr. at pg. 10.) The Board agrees with the Veteran that under the circumstances of this case the 2012 evaluation was cursory at best as it did not include an actual interview or examination of the Veteran. Thus, the Board finds that it is not sufficient to adequately address the medical questions at issue. The examiner's opinions are not probative as they were not based on full consideration of all evidence available to him/her, to include the Veteran's contemporaneous assertions as to why his low back disorder(s) was of service origin. Therefore, on remand the RO shall schedule the Veteran for an additional orthopedic examination of his low back by a new examiner to determine if any current low back disorder is related to his period of active service, or, if a back disorder preexisted service, whether it was aggravated therein. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing Board's duty to return inadequate examination report); Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (remanding when VA examination was inadequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (concluding that inadequate medical evaluation frustrates judicial review). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Ask that the Veteran identify any additional medical treatment he has received for the condition(s) on appeal. Obtain all identified records. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1) (2012), whereas subpart (c)(2) controls if they are. Also appropriately notify him if unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1) (2012). 2. Obtain a new VA orthopedic evaluation to be conducted by a doctor who has not previously examined the Veteran. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. All indicated studies, and tests deemed necessary by the examiner/reviewer should be accomplished and all findings reported in detail. The examiner/reviewer must confirm that the claims folder was reviewed in the examination report. In addressing the questions below, the examiner/reviewer's opinion should be assisted by an examination and interview of the Veteran, a review of the Veteran's medical history, and findings as documented upon any prior examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on a review of the claims folder and interview and evaluation of the Veteran, the examiner/reviewer must identify any and all back disorder(s) present. b. Based on a review of the claims folder and interview and examination of the Veteran, the examiner/reviewer should state, for each diagnosis of a back disorder, whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current back disorder is directly related to the Veteran's military service, to include consideration as to whether it initially manifested or had its onset in service or otherwise whether the symptomatology shown in service is causally or etiologically related to a current back disorder; or whether such causal or etiological relationship or initial onset is unlikely (i.e., a probability of less than 50 percent.) The examiner/reviewer must provide a supporting rationale for the opinion expressed. c. If the examiner/reviewer believes that the Veteran has a back disorder which was present prior to service, the examiner should thoroughly explain the basis of that belief and specifically opine as to whether there is clear and unmistakable evidence (i.e., obvious or manifest) that such disorder developed prior to service, and, if it did, whether there is also clear and unmistakable evidence (i.e., obvious or manifest) that any increase in severity of symptoms during service represented mere natural progression of the pre-existing disorder, as opposed to an aggravation of the disorder. The examiner must specify the evidence and medical principles considered in arriving at the conclusion. d. The examiner/reviewer should discuss lay and medical evidence contained in the claims file, to include the Veteran's STRs from May 1981 to August 1981 documenting his complaints of and treatment for back pain, and post-service lay and medical evidence in support of his or her conclusions. The examiner should discuss the STR entries, to include those discussed above, in providing a rationale for his or her conclusion. The credibility of the lay evidence as it relates to the history of back problems must be addressed, in light of the medical history and other relevant evidence included in the claims folder. The examiner/reviewer must further confirm that the claims folder has been reviewed. e. 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 medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. f. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the baseline level of disability, and does not include an increase in the disorder which is due to the natural progress of the condition. g. 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 unsupported speculation, the examiner should so state, and explain why that is so. Because the Board is under judicial directive generally not to accept inconclusive opinions, a clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any additional notification and/or development deemed necessary is undertaken, the claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC), provided an appropriate period for response, and the case should thereafter be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).