Citation Nr: 1327633 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-02 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Board finds that additional development is required before the Veteran's claim on appeal is decided. The Veteran has claimed entitlement to compensation under 38 U.S.C.A. § 1151 for an injury he sustained while working as a work study under VA's vocational rehabilitation program. In a January 2013 remand, the Board directed the RO or the AMC to arrange for the Veteran to be examined to determine if the Veteran had any additional disability as a result of his October 2004 injury, to include any permanent increase to a pre-existing disability. Review of the claims files reveals that the Veteran did, in fact, undergo a VA examination in June 2013; however, the requested development was not completed by the VA examiner. Specifically, the examiner did not address whether the Veteran developed any additional disability as a result of his October 2004 injury; and if so, whether any such additional disability was permanent increase of any pre-existing condition. In this regard, the Board notes that following the reported October 2004 injury, the Veteran sought emergency treatment for low back pain at the VAMC, at which he was afforded X-rays of his lumbosacral spine which revealed moderate multilevel discogenic disease at L5 to S1. The June 2013 VA examiner did not address the October 2004 findings of degenerative disc disease and whether the Veteran's reported October 2004 injury while working as a work study aggravated this pre-existing disability. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has no recourse but to remand this case. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO or the AMC should arrange for the Veteran's claims files to be sent to a VA examiner, different from the June 2013 VA examiner (if possible, but not required), in order to perform a file review and provide an opinion as to the nature and etiology of the Veteran's low back disability. Another physical examination of the Veteran should only be performed if deemed necessary by the physician providing the opinion. The claims files must be provided for review by the physician. Based on a review of these files, the examiner is asked to determine whether it is at least as likely as not (a 50 percent or better probability) that the Veteran has any additional disability caused by his October 2004 injury; to include any aggravation (i.e. permanent increase beyond the normal progression) of his degenerative disc disease of the lumbar spine which was diagnosed in October 2004. The complete rationale for all opinions expressed must be provided. 2. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and her 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 has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JOHN J. CROWLEY 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).