Citation Nr: 1326154 Decision Date: 08/16/13 Archive Date: 09/24/13 DOCKET NO. 07-16 316 ) DATE AUG 16 2013 On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lumbar spine disorder, described as low back pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active military duty from February 1987 to February 1991. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran cancelled his hearing before a member of the Board in Washington D.C. scheduled in July 2010. In January 2011, October 2011, and September 2012, the Board remanded the matter for additional evidentiary development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 A March 2011 VA examination contained a diagnosis of lumbago. X-ray findings noted in the examination report indicated mild degenerative joint disease. The examiner was unable to respond to the question of whether a current back disorder was related to service without resorting to speculation. The Board subsequently remanded the matter in October 2011 and September 2012 for further review of the file by an examiner so that an etiologic opinion could be provided. The responses received, to date, have been inadequate and in fact contain no response at all. Instead they simply reference the March 2011 examination as being "complete." It should also be noted that the March 2011 examination report reflects that the Veteran can only forward flex to 60 degrees, but indicated that the Veteran's range of motion of his lumbar spine is normal, with no additional explanation. Under Plate V of 38 C.F.R. § 4.71a (2011), for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero -2- to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. In light of the unsuccessful results of the file reviews requested in the prior remands, the Board now orders another full physical examination of the Veteran. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination of his lumbar spine. Any and all diagnoses should be noted. If no diagnosis is presently found, the examiner must indicate whether the finding of lumbago on prior examination in March 2011 represented a chronic disability at that time. In this regard, the examiner should expressly address the fact that flexion was limited to 60 degrees at the March 2011 examination and explain whether that finding signifies chronic disability. For every low back disorder found to exist at present or at any other time during the appeal, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that it began during service or is related to any incident of active service. In this respect, the VA examiner should opine whether any current lumbar disability is consistent with the Veteran's 1990 in-service complaints of low back pain. The examiner is advised that the term 'as likely as not' does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for -3- and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion provided. If this inquiry cannot be answered without resorting to speculation, the examiner should explain exactly why it would be speculative to respond, and what additional information or evidence would be needed to provide the requested opinion. In reaching his or her conclusions, the examiner should specifically consider the Veteran's reports of back pain that becomes severe every two months for three to seven days, and the lay statements submitted by the Veteran's friend and fellow service member supporting the finding of chronic, ongoing back pain since service. 2. Upon completion of the above, readjudicate the claim of entitlement to service connection for a lumbar spine disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. -4- 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). -5-