Citation Nr: 1324565 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-21 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1968 to August 1972, from September 1980 to March 1986, and from February 1991 to April 1991. He also had service in the Army National Guard. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied service connection for bilateral hearing loss, tinnitus, and residuals of a back injury. In February 2010, the Veteran, sitting at the RO, testified during a hearing conducted via video conference with the undersigned Veterans Law Judge, sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. In an April 2010 decision, the Board granted the Veteran's claims of service connection for bilateral hearing loss and tinnitus. In April 2010 and April 2013, the Board remanded the Veteran's claim of service connection for residuals of a back injury to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND It appears that the Veteran failed to report for a VA examination scheduled in May 2013. However, in May and June 2013 written statements, he explained that he was not notified of the date and time of the scheduled examination. The record shows that a May 2006 VA examiner diagnosed degenerative disk disease of the lumbar spine with radiculopathy, left greater than right. No opinion as to etiology was provided. A December 2007 VA examiner diagnosed chronic low back strain associated with multi-level spinal canal and neural foraminal stenosis with bilateral lower extremity radiculopathy less likely as not related to service. The opinion was based on a lack of documentation of the lower back in service and in between service and post-service. In its April 2010 remand, the Board found the December 2007 examiner's opinion flawed and directed that the Veteran undergo a new VA examination. In July 2010, a VA examiner diagnosed lumbar spine degenerative disc disease, lumbar stenosis, and lumbar spine osteoarthritis/degenerative joint disease, that was less likely as not caused by or a result of in-service injury. The examiner noted no record of the Veteran being seen for his back and that his conditions were degenerative in nature. In its April 2013 remand, the Board noted that the Veteran's factual recitation as to his low back injury in service and continued low back symptomatology was accepted as true. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board observed that the Veteran's service treatment records corroborated his reports of being treated for back pain in service. In April 2013, the Board found the July 2010 VA examiner's opinion flawed, noting that the Veteran provided credible testimony regarding a back injury incurred during a fight with a fellow service member, and that service treatment records corroborated his reports of treatment for back pain in March 1969 and July 1972. Thus, the Board remanded the Veteran's case to the RO to obtain an opinion from the July 2010 VA examiner as to whether the March 1969 and July 1972 reports of back pain in the service medical records represented the onset of the Veteran's current back disorders. The Board directed that, if the July 2010 VA examiner was unavailable, the file should be referred to another adequately qualified medical provider, preferably a neurosurgeon, for a response. Further, the Board directed that "[a] new examination should be performed only if deemed necessary by this examiner." In an April 17, 2013 letter, the AMC advised the Veteran that his case was returned to the San Antonio VA medical center (VAMC) for an opinion/addendum and that, if an additional examination was necessary, the VAMC would notify him of the date and time. Records show that the Veteran failed to report for a VA examination scheduled on May 20, 2013. However, in a lengthy letter, dated on May 25, 2013, the Veteran explained that he never received an appointment letter, card, or phone call, regarding an appointment at the Audie Murphy VA Hospital or other VA clinic. He said that, on May 20, 2013, he saw his primary care physician but was not told by medical staff that he had other appointments on that day at the VA hospital that was two miles from his physician's office. The Veteran said that he received the AMC's April 17, 2013 letter, indicating that he would be notified if an examination was scheduled, but never received notice of a scheduled appointment. He requested to be rescheduled for the VA examination in conjunction with his claim. In a written statement received in June 2013, the Veteran reiterated that he was not notified of the scheduled VA examination. Here, the Board finds that in the interest of due process and fairness, the Veteran should be afforded another opportunity to undergo a VA examination to determine the etiology of his claimed back disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination performed by a physician with appropriate expertise, e.g., preferably a neurosurgeon, to determine the etiology of any diagnosed back disorder found to be present. A copy of the letter advising the Veteran of the date, time, and location of the scheduled VA examination must be placed in the claims file. The claims file should be made available to the examiner prior to examination. All indicated tests and studies should be conducted and all clinical findings reported in detail. a. The examiner should be advised that the Board has found credible the Veteran's account of injuring his back in 1968 or 1969 in service during a fight with another service member and his subsequent continued low back symptomatology. b. The examiner should render an opinion as to whether any currently diagnosed lumbar spine disorder is at least as likely as not (50 percent chance or greater) related to the Veteran's reported injury to his spine in the Air Force and subsequent back pain during his service in the Army. c. In rendering an opinion, the examiner is particularly requested to address the March 1969 and July 1972 service treatment records (noting treatment and complaints of back pain) and the Veteran's February 2010 Board hearing testimony (in Claims files #1 and 5). A rationale must be provided for all opinions rendered. 2. After ensuring that the requested actions are completed, the RO/AMC should re-adjudicate the claim on appeal for service connection for residuals of a back injury. If the benefits sought are not fully granted, the Veteran and his representative should be provided with a supplemental statement of the case before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ ERIC S. LEBOFF 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).