Citation Nr: 1315248 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-01 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and R.P. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from July to October 1969. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for a low back disability as new and material evidence had not been received. The RO in Albuquerque, New Mexico currently has jurisdiction over the Veteran's claim. In March and December 2008, the Veteran testified at hearings before a Decision Review Officer (DRO) and the undersigned at the RO, respectively. Transcripts of these hearings have been associated with his claims folder. In August 2009, the Board denied the petition to reopen the claim of service connection for a low back disability as new and material evidence had not been received. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 memorandum decision, the Court vacated the Board's August 2009 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In November 2011, the Board granted the petition to reopen the claim of service connection for a low back disability and remanded the underlying claim for further development. In December 2012, the Board again remanded this claim for additional development. The issue of total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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, this case requires further development before a decision can be properly adjudicated. In its December 2012 remand, the Board instructed the AOJ to first contact the Veteran to obtain records from Dr. Southward and associate these records with the claims file, and then to seek an addendum opinion from the VA examiner who provided a December 2011 VA examination with consideration of any additional records added to the record. The claims file was provided to the VA examiner, and he provided an addendum opinion on January 15, 2013. Subsequently, the Veteran sent in records from Dr. Southward. These records show that he completed his release form on January 17, 2013, and that the private records were received by the VA sometime thereafter. The claims file was not returned to the VA examiner to provide an opinion addressing the additional evidence in these records. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the VA examiner did not review these additional records in rendering his addendum opinion, the case must be remanded for this development. On remand, the claims file must be returned to the VA examiner who provided the December 2011 VA examination and the January 2013 addendum, for an additional addendum opinion with consideration of the additional private medical records provided by the Veteran later in January 2013. Accordingly, the case is REMANDED for the following action: 1. Ask the examiner who conducted the December 2011 VA examination and provided the January 2013 addendum opinion to review the claims file, including this remand and the private medical records provided by the Veteran subsequent to the January 2013 addendum, and provide an opinion as to the etiology of the Veteran's current low back disability. The opinion provider should answer the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran's current low back disability (any low back disability diagnosed since June 2005) had its onset in service, is related to his back problems in service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the opinion provider should acknowledge and comment on all low back diagnoses provided since June 2005, all of the Veteran's documented back problems in service, his post-service back injuries, the reports of back symptoms in the years since service, and the private medical records provided by the Veteran subsequent to the January 2013 addendum. The opinion provider must provide reasons for each opinion given. If the opinion provider is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The opinion provider is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of a continuity of symptomatology since service, must be specifically acknowledged and considered in formulating any opinions. If the opinion provider rejects the Veteran's reports, he or she must provide a reason for doing so. If the VA examiner specified is unavailable or otherwise unable to provide the requested opinion, the Veteran should be afforded a new VA examination to obtain the necessary opinion. 2. The AOJ should review the opinion/examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, 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). _________________________________________________ J. A. MARKEY 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).