Citation Nr: 1318357 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-33 263 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A hearing was held in May 2010 in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file. The Board remanded the case for further development in January 2011 and February 2013. The case has since been returned to the Board for appellate review. The Board notes that, in correspondence dated in February 2012, the Veteran indicated that he agreed with the denial of service connection for his back disorder; however, he did not specifically withdraw the claim. Therefore, in the February 2013 remand, the Board directed that the Appeals Management Center (AMC), in pertinent part, obtain clarification from the Veteran as to whether he still wanted to pursue this claim. In February 2013, the AMC sent the Veteran a letter requesting that he clarify whether he still wanted to pursue this claim; however, to date, he has not responded to that letter. Because there was no response, the issue remains on appeal. Both the paper claims file and the Veteran's electronic record were reviewed in connection with this appeal. 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 In the February 2013 remand, the Board indicated that, if the Veteran did not wish to withdraw his appeal, an additional medical opinion should be obtained. It was specifically noted that the Board had granted service connection for a cervical spine disability and that the Veteran had claimed that he currently had a back disorder that was secondary to his neck disorder. The remand directives requested that the examiner provide an opinion as to whether the Veteran's current back disorder was caused or aggravated by his service-connected cervical spine disability. Following the remand, an additional VA medical opinion was obtained in March 2013. The examiner addressed whether the Veteran had a current back disorder that was directly related to his military service; however, he did not address the Veteran's secondary claim. The Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Therefore, the Board finds that an additional medical opinion is necessary in this case. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims folder to the March 2013 VA examiner, or if he is unavailable to another suitably qualified VA examiner, for a clarifying opinion as to the etiology of any low back disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has a current low back disorder that is either caused by or permanently aggravated by his service-connected cervical spine disability. In rendering his or her opinion, the examiner should specifically consider the following evidence: * A March 2006 treatment record showing that the Veteran has degenerative joint disease secondary to working for the railroad * A January 2011 record from Dr. F. M., which states that the Veteran's osteoarthritis of the dorsal spine is due to his post-service employment at the railroad where the Veteran worked in the yard and walked on the rocks. * The Veteran's February 2012 statement in which he denies injuring his low back in service, but states that his physician advised him that "an injury to the back can affect the entire region." A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraph. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Thereafter, if applicable, the case should be returned to the Board for appellate disposition. 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). _________________________________________________ JESSICA J. WILLS 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).