Citation Nr: 1320108 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-04 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Nancy L. Foti, Attorney ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from February 1969 to April 1970 with additional active duty for training and inactive duty for training in the New York National Guard. This appeal arose before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Buffalo, New York, Department of Veterans Affairs (VA), Regional Office (RO) that denied entitlement to service connection for a low back disorder. In October 2011, the Board issued a decision that also denied this service connection claim. The Veteran then appealed the Board's October 2011 decision to the Court of Appeals for Veterans Claims (CAVC). The Veteran's representative and VA agreed upon a Joint Motion for Remand (JMR). CAVC issued an Order, returning the case to the Board for action consistent with the JMR in May 2012. Copies of the JMR and CAVC Order have been included in the claims file. The case is again before the Board for appellate consideration. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In accordance with the JMR, this case must be remanded to the RO for further action. While the Board regrets the additional delay, such remand is necessary in order to fully comply with the CAVC Order. In the October 2011 decision, the Board had found that the Veteran's diagnosed degenerative disc disease (DDD) of the lumbar spine with spinal stenosis and radiculopathy had first manifested several years after his service discharge, and was not related to his past service, to include a lumbar muscle strain sustained while on inactive duty for training in April 1987. The Veteran appealed this decision to CAVC, and the parties agreed to issue a JMR. In the JMR, the parties noted that the VA examiner in March 2011 had commented that the Veteran's back pain had had its onset (or began to bother him) in only 2006 or 2007. The alleged 2006 or 2007 date of onset referred to the by the examiner appeared to have ignored the Veteran's assertions that the back pain had had a much earlier onset. It was also noted that the VA examiner had not properly taken into consideration an August 2007 private physician's statement indicating that the Veteran's back pain had been present "for years." Therefore, the parties to the JMR agreed that another opinion was needed that took these statements into consideration. Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder to the examiner who conducted the March 2011 examination for an addendum to the opinion that takes into consideration the Veteran's assertions to his private physician in August 2007 that he had experienced low back pain for years. In light of this assertion, the examiner must render an opinion as to whether it is at least as likely as not that the currently diagnosed lumbar spine DDD with stenosis and radiculopathy is etiologically related to the Veteran's service, to include an in-service incidence of mechanical low back pain noted in the April 1987 service treatment record. A complete rationale for the opinion expressed must be provided. If this examiner is no longer available, the claims folder must be referred to an examiner who is qualified to render the above-requested opinion. If an examination is deemed necessary to render the above-requested opinion, such should be scheduled. 2. If another examination is deemed necessary, the Veteran must be advised of the importance of reporting to this examination and of the possible adverse consequences, of failing, without good cause to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of any scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If the Veteran fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. Once the above-requested development has been completed, the Veteran's claim for entitlement to service connection for a low back disorder must be readjudicated. If the decision remains adverse to the Veteran, he and his representative must be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).