Citation Nr: 1327180 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-23 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a spine disability, claimed as spondylolisthesis, pelvic girdle dysfunction, and degenerative disc disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from February to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana (RO). 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 VA nexus opinion was obtained in July 2012. After review of the claims file, the reviewer concluded that it was "less than likely as not" that the Veteran's spondylosis and spondylolisthesis, which were determined to have pre-existed service, were permanently aggravated beyond the normal progression of the disease because the June 2005 X-ray showed a congenital spine deformity of L5, which means that there was instability of the back when the Veteran entered service that was manifested by increased back pain due to increased physical activity in basic training, and because the evidence showed a post-service work injury to the back with subsequent surgery. Clinical examination of the Veteran's spine was normal on preservice evaluation in February 2005. A June 2005 X-ray showed L5 pars defects. The assessment was congenital spinal deformity of lumbosacral spondylolysis. Symptomatic spondylolysis of L5 was diagnosed in July 2005, with separation from service recommended due to his condition. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of sound condition under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. However, the July 2012 VA opinion which concluded that it was "less than likely as not" that the Veteran's preexisting spondylosis and spondylolisthesis were permanently aggravated beyond the normal progression of the disease by service, is an incorrect standard of proof. Consequently, the case must be remanded to obtain a new opinion. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will ask the Veteran to provide the names and addresses, as well as the dates of treatment, of all health care providers, both VA and non-VA, who have seen or treated him for a spinal disability since July 2012, which is the most recent medical evidence on file. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. After the above has been completed, the AMC/RO must arrange for review of the Veteran's claims file by the VA health care provide who examined the Veteran in July 2012 for a new opinion. If the reviewer who provided the July 2012 opinion is not available, the AMC/RO will obtain an opinion from another appropriate medical professional. The claims files and all records on Virtual VA must be made available to the reviewer, and the reviewer must specify in the evaluation report that the claims files and Virtual VA records have been reviewed. The reviewer must specify the dates encompassed by the Virtual VA records that were reviewed. If the reviewer determines that examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2012). However, the Veteran should not be required to report for examination as a matter of course if it is not found to be necessary. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. The reviewer should indicate whether or not the claims folder was reviewed. Following review of the record, the reviewer will provide an opinion on whether there is clear and unmistakable evidence (obvious and manifest) that the Veteran's preexisting spondylosis and spondylolisthesis were not aggravated by his military service. The reviewer should provide a complete rationale for the opinion provided. The above requested opinion must discuss the relevant evidence of record, to include the complaints and findings of low back disability in service. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. If the examiner is unable to provide an opinion without resorting to speculation, he or she must explain why a definitive opinion cannot be provided. In particular, the examiner must specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted and must discuss why additional testing or information would not lead to a conclusive opinion. In the event that the Veteran does not report for a scheduled examination, documentation will be obtained which shows that notice scheduling the examination was sent to the last known address. It will also be indicated whether any notice that was sent was returned as undeliverable. 3. Thereafter, the AMC/RO will review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 4. After completion of the above, and any other development the AMC/RO deems necessary, the AMC/RO should consider all of the evidence of record and re-adjudicate the Veteran's claim for service connection for a spinal disability. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).