Citation Nr: 1315693 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 10-00 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from January 1980 to March 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously been before the Board in September 2012, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board finds that additional development is required before the Veteran's claim on appeal is decided. In the September 2012 remand, the Board directed that the Veteran be scheduled for a VA examination to determine the nature and etiology of any low back disability. The examiner was asked to provide an opinion regarding etiology and to specifically address the Veteran's reports of chronic back pain at his December 1994 VA examination. In a November 2012 VA examination, based on a review of the record and an examination of the Veteran, the examiner opined that the Veteran's low back disability was less likely as not related to his active service. The examiner noted that there was no specific injury in service. Additionally, the examiner noted that with age, post-service vocation, and weight gain, the Veteran had developed degenerative joint disease in all joints and thus his low back disability was not related to his active service. The Board notes that the examiner did not address the complaints noted in the December 1994 VA examination report that the Veteran had been experiencing low back pain for many years. The Board finds those complaints significant as they were made within one year of the Veteran's separation from active service. Additionally, the examiner noted that there was no specific injury in active service. While that may be the case, the Board notes that there need not be an actual injury during service for a disability to be related to service. For these reasons, the Board finds that the VA examination and opinion are not adequate for adjudication purposes. Therefore, the Board concludes that the development conducted does not comply with the September 2012 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any currently present low back disability. Additionally, the Veteran has reported that he received treatment for a low back disability at the VA Medical Center in Columbia in 1994. A review of the record shows that in December 2011, a request was made for the Veteran's representative to clarify the Veteran's report. However, the request asked the Veteran to clarify treatment he received in 2004, not treatment he received in 1994. In response to the request, the Veteran reported that he had no other evidence in his possession and requested that his appeal be sent to the Board. There is no indication from the record that attempts were made to obtain the identified 1994 VA Medical Center treatment records. As the Veteran has identified VA Medical Center records, attempts to obtain the identified records must be made prior to a decision being rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA Medical Center treatment records not already of record in the claims file from 1994 to the present. 2. Then, schedule the Veteran for a VA examination by a physician with sufficient expertise to determine the nature and etiology of any current low back disability. The examiner must review the claims file and must note that review in the report. Any indicated studies should be performed. Based upon the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current low back disability is related to the Veteran's active service. The rationale for all opinions expressed must be provided. The examiner must specifically address the Veteran's complaints of chronic low back pain made at his December 1994 VA examination and his history of experiencing low back pain since service. 3. Then readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).