Citation Nr: 1323635 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-38 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from February 1989 to December 1992. This matter came to the Board of Veterans' Appeals (Board) from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in June 2011 and November 2012 for further development. Additional evidence and waiver of RO review were received in May 2013. 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 case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Although the February 2013 VA medical examiner stated that there is no medical evidence that any back condition was present during active service, he failed to discuss whether the Veteran's back disability is related to his duties as a fire protection specialist and the Veteran's assertion that noxious gases caused back pain. In recent communications the Veteran has questioned the RO's efforts to obtain all medical records. The Board acknowledges a November 2012 letter in which the RO asked the Veteran to complete and return Authorization and Consent to Release Information form for Deaconess Hospital. To date, the Veteran has not responded to this specific request. In light of the remand reasons above, the RO should make another attempt to obtain treatment records from Deaconess Hospital. In the November 2012 letter, the RO also asked the Veteran to complete and return Authorization and Consent to Release Information form for his Workmen's Compensation claim. An April 2013 Formal Finding of Unavailability of Workman's Compensation Records notes that in February 2013, the RO advised the Veteran to complete and return a Request for Employment Information form and the Veteran has not responded to the request. In light of the remand reasons above, the RO should make another attempt to obtain treatment records from Workmen's Compensation. Even if the Veteran fails to respond, a January 2008 VA treatment record mentions that Workmen's Compensation records were sent for scanning. The Board does not have access to the records that were scanned. As noted in the November 2012 remand, records associated with the Veteran's claims file include: a December 2007 letter from the U.S. Department of Labor (Labor) that his claim had been accepted; a January 2008 letter from Labor with an attachment notifying him of his appointment with Dr. George Harper; and a February 2008 letter addressed to Labor from Dr. Harper of the Veteran's examination. It is unclear to the Board if these documents were the ones that were scanned (or if there is additional documentation) and whether these documents represent the Veteran's entire workman's compensation file. If not, the scanned records should be associated with the Veteran's claims folder to determine the relationship, if any, between his back disability and Workman's Compensation. Additionally, in an April 2013 letter, the RO requested a completed Authorization and Consent to Release information for St. Joseph Medical Group in Lewiston, ID. To date, the Veteran has not submitted this request as well. Another attempt should be made to obtain these records. Although the Board regrets further delay, the case must be returned to the RO for additional development. Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate action request all Workmen's Compensation records and to place copies of any scanned Workmen's Compensation records in the claims file. 2. Appropriate action should be taken to obtain treatment records from Deaconess Hospital and St. Joseph Medical Group, to include again requesting any necessary releases from the Veteran. 3. After completion of the above to the extent possible, the claims file should be forwarded to the February 2013 VA examiner for review and an addendum to the examination report providing an opinion as to whether it at least as likely as not (a 50% or higher degree of probability) that the current low back disability is causally related to service, to include his duty as a fire protection specialist and his exposure to gases? The examiner should offer a rationale for the opinion. If the February 2013 VA examiner is no longer available. The Veteran should be afforded another appropriate VA examination to determine the nature, extent and etiology of any current low back disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the current low back disability is causally related to service, to include his duty as a fire protection specialist and his exposure to gases? The examiner should offer a rationale for the opinion. 4. For the purpose of avoiding further remand, the RO should review the examination report/opinion to ensure that it is responsive to the above directives. If not, the RO should return the report/opinion to the examiner for an addendum. 5. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ALAN S. PEEVY 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).