Citation Nr: 1327314 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 03-30 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease. REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) in Huntington, West Virginia. In January 2005, the undersigned Veterans Law Judge (VLJ) held a hearing on this matter. A transcript of the hearing is of record. This matter was previously before the Board in March 2005, June 2009 and January 2013 at which times it was remanded for additional development. As is explained below, the claim is being remanded in order to substantially comply with the Board's January 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). By letter dated in May 2013, the representative informed VA that the Veteran wished to withdraw from appeal all issues except for the issue of entitlement to service connection for a lumbar spine disability. By letter dated in June 2013, VA informed the Veteran (and his representative) that per the May 2013 letter, all issues on appeal had been withdrawn with the exception of the issue of entitlement to service connection for a lumbar spine disability. 38 C.F.R. § 20.204. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND One basis for the Board's January 2013 remand was to afford the Veteran a VA neurosurgical examination in order to address the etiology of any diagnosed lumbar disorder. Records, to include a June 2013 supplemental statement of the case, suggest that such an examination may have taken place on April 18, 2013, at the Martinsburg VA Medical Center (VAMC). Notably, however, a careful review of an April 5, 2013 examination report reveals that the Martinsburg facility could not conduct a neurosurgical examination because that "subspecialty was not available" at that facility. While there are references to an April 18, 2013 note from a "Dr. Benjamin," it is unclear whether that physician is a neurosurgeon, and if so, whether the report complies with the instructions set forth in January 2013. In any event, no neurosurgical examination report is available for the Board's consideration. Consequently, a remand is required. 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Locate the April 18, 2013, examination report from "Dr. Benjamin." If that report is a report of a neurosurgical examination it must be associated with the claims file. If the RO cannot locate that record it must specifically document the attempts that were made to locate it, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. If the April 18, 2013 report is not a report from a neurosurgeon, or if a neurosurgical examination has yet to be conducted, then the RO must schedule the Veteran for a VA neurosurgical examination by a physician to address the etiology of any diagnosed lumbar disorder. The neurosurgical physician is to be provided access to the claims folders, Virtual VA and a copy of this remand in conjunction with the examination. The examination report must include responses to the following: Based on a review of the claims folder, Virtual VA and the examination findings, including the service treatment records, private treatment reports, VA treatment reports, the neurosurgical physician must opine whether it is at least as likely as not that any diagnosed lumbar disability is causally or etiologically related to the appellant's in-service symptomatology as opposed to the disorder being more likely due to some other postservice factor or factors. The neurosurgical physician must address whether any currently diagnosed back disability is at least as likely as not related to a 1990 in-service back injury after lifting a generator. The neurosurgical physician must also consider evidence that the Veteran had a 1996 post-service back injury after pulling mattresses weighing over 200 pounds. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions is required and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. It is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012). Hence, copies of all pertinent records in the claims file and on Virtual VA must be made available to the examiner for review. 3. The Veteran is to be notified that it is his responsibility to report for any ordered examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). 4. After the development requested is completed, the RO must review any and all examination reports to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant and his representative have 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). _________________________________________________ DEREK R. BROWN 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).