Citation Nr: 1320221 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-14 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from August 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in October 2012 before the undersigned. A copy of the transcript has been associated with the claims file. In March 2013 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The appeal is again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND While the Board regrets the further delay that another remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In the March 2013 remand, the Board requested that the Veteran undergo a VA examination, which he did in April 2013. The negative etiology opinion is inadequate for two reasons. First, the Board accepts the Veteran's statement that he injured his back when he fell from a truck in service as credible. The Board directed the examiner to also accept his statement as credible. In the opinion, the examiner instead relied on a lack of documentation in the Veteran's service treatment records (STRs) as a reason to find that his back disability was not incurred in service. Second, the Board asked the examiner to specifically address the Veteran's post-service motor vehicle accident in 1973, and provide an opinion as to whether that accident aggravated the injury sustained in service. The examiner did not discuss the 1973 motor vehicle accident. There was not substantial compliance with the Board's remand directives. Therefore, another remand is necessary so that an adequate opinion may be obtained. Id. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the April 2013 examination. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the examination is to determine whether the Veteran has a low back disability that had its onset or was aggravated during active service; or, if arthritis is diagnosed, manifested to a compensable degree within one year of active service, or, is otherwise related to any incident of service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's low back disability began during active service and is related to any incident of service to include his jump off a truck during active duty. If arthritis is diagnosed, the examiner must also provide an opinion as to whether it began within one year after discharge from active service. c) The examiner must accept as credible that the Veteran jumped off a truck in service and subsequently experienced back pain for a few weeks despite the absence of documentation in the service treatment records. d) The examiner must address the Veteran's reported 1973 post-service motor vehicle accident (MVA) and provide an opinion as to whether it aggravated the back injury he sustained in service or whether it is at least as likely as not that the current back disability is attributable to such post-service MVA. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. 2. After the above has been completed, the RO must review the claims file and ensure that the foregoing development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, 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). _________________________________________________ K. PARAKKAL 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).