Citation Nr: 1322842 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 05-20 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a lumbar spine disability. (The issue of whether the denial of extension of time to submit evidence was proper is addressed in a separate decision). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2006 and June 2009, the Veteran appeared at the RO and testified before Veterans Law Judges (VLJs). Transcripts of these hearing are of record. Transcripts of those hearings have been associated with the claims file. The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). The United States Court of Appeals for Veterans Claims (Court) held that a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Pursuant to the Court's holding in Arneson, a letter was sent to the Veteran in May 2013 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. In a statement received in June 2013, the Veteran responded that he did not wish to appear at a hearing before a third VLJ. Therefore, in accordance with Arneson, an additional hearing is not needed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 a separate decision the Board has granted the Veteran an extension of 90 days to submit additional evidence. As any evidence that may be submitted by the Veteran may impact upon the claim of entitlement to service connection for a lumbar spine disability, the Board finds the issue to be inextricably intertwined with the development ordered by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the issue of entitlement to service connection for a lumbar spine disability must be remanded. In addition, if and only if, additional medical evidence is received from the Veteran, the claims file must be returned to the VA examiner who rendered the opinion November 2009 for preparation of an addendum taking into consideration the newly submitted evidence. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If and only if additional evidence is received from the Veteran, the claims file should be returned to the VA examiner who rendered an opinion in November 2009 for preparation of a supplemental opinion. If that examiner is unavailable, refer the claims folder to an appropriate examiner to obtain the supplemental opinion. If that examiner determines that an opinion cannot be provided without an examination, schedule the Veteran for an examination. The examiner should indicate in his/her report whether or not the claims file was reviewed. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any lumbar spine disability is related to or had its onset during service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. Thereafter, readjudicate the claim of entitlement to service connection for a lumbar spine disability. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). HARVEY P. ROBERTS MILO H. HAWLEY Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ ROBERT E. SULLIVAN 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).