Citation Nr: 1318351 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-06 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to service-connected residuals of a total abdominal hysterectomy. ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Most recently, in October 2012, the Board remanded the issue on appeal, and granted a claim for service connection for residuals of a total abdominal hysterectomy. This grant was effectuated by an October 2012 rating decision which awarded a 50 percent disability rating, effective February 15, 2006. Because the Veteran has not appealed the rating or effective date assigned, no claim regarding this disorder is in appellate status at this time. As noted above, the claim on appeal was remanded for additional development, February 2013 and March 2013 supplemental statements of the case were subsequently issued, and the case is once again before the Board. 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, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record on which to decide the Veteran's claim so that she is afforded every possible consideration. VA Opinion- In the October 2012 Remand, the Board asked that the Veteran be accorded an appropriate VA examination. The examiner was asked to opine as to whether the Veteran's low back disorder had been aggravated by her service-connected residuals of a total abdominal hysterectomy. Although the November 2012 VA examiner addressed whether the Veteran's service-connected residuals of a total abdominal hysterectomy caused the Veteran's low back disorder, an opinion regarding whether the Veteran's service-connected disorder aggravated her low back disorder was not provided. Rather, the examiner provided the following cursory statement, "no evidence of permanent aggravation." Thus, an opinion as to secondary aggravation must be obtained on remand. The Board is obligated by law to ensure that the RO complies with its directives. 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. Stegall v. West, 11 Vet. App. 268 (1998). On remand, therefore, the Veteran should be accorded a pertinent VA addendum opinion. Outstanding Records- The Veteran indicated in a March 2013 statement that there are outstanding medical records from the Davis Monthan Clinic. A review of the records in the claims file does not reflect records from this military medical facility. As such, all available records associated with the Veteran's back treatment from the Davis Monthan Clinic in Arizona should be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. After obtaining any necessary release, obtain all available records from the Davis Monthan Clinic in Arizona regarding the Veteran's back treatment. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the efforts made and why further efforts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the development set forth above, return the Veteran's claims file to the examiner(s) who conducted her VA examination in November 2012, or to a qualified medical professional if that examiner is unavailable. If the examiner determines that an additional examination is necessary, one should be scheduled. The examiner should review the Veteran's claims file and render an opinion as to whether the Veteran's current low back disorder is at least as likely as not (a 50 percent probability or greater) aggravated by her service-connected residuals of a total abdominal hysterectomy. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the low back disorder before the onset of the aggravation (i.e., a baseline), and also after the aggravation. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The VA examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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), 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).