Citation Nr: 1328401 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-28 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for degenerative joint disease and degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity, to include as secondary to service-connected muscle strain of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to March 1987, including active duty for training in September 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing in January 2007, but did not appear. The hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In April 2010, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court issued a memorandum decision that vacated and remanded the April 2010 Board decision for further development and consideration. In July 2012 and February 2013, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 Veteran seeks service connection for degenerative joint disease and degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity, to include as secondary to her service-connected muscle strain of the low back. The Board remanded the appeal in February 2013 with instructions for the RO to obtain a VA opinion addressing whether the Veteran's degenerative joint disease and/or degenerative disc disease with radiculopathy of the left lower extremity had been either caused or aggravated by her service-connected muscle strain of the low back. The Board further instructed that the examiner was to reconcile any contradictory evidence, including the May 1991 private orthopedist's opinion. A VA opinion was provided in May 2013. The examiner reconciled the May 1991 private orthopedist's opinion with the contradictory VA examination findings. However, he did not indicate whether the degenerative joint disease and/or degenerative disc disease with radiculopathy of the left lower extremity had manifested within a year of the Veteran's service discharge or provide an opinion as to whether the degenerative joint disease and/or degenerative disc disease with radiculopathy of the left lower extremity was either caused or aggravated by her service-connected muscle strain of the low back, as directed in the February 2013 remand. Therefore, the opinion is inadequate. As there is noncompliance with the Board's remand directives, the Board has no discretion and must remand the claim. Stegall, 11 Vet. App. at 268. Accordingly, the case is REMANDED for the following action: 1. Return the claim file to the examiner who provided the May 2013 opinion. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's degenerative joint disease and degenerative disc disease of the lumbar spine with radiculopathy of the left lower extremity was: a) manifested within one year of service discharge (even if not shown on x-ray); or, b) caused by the service-connected muscle strain of the low back; or, c) aggravated by the service-connected muscle strain of the low back. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. 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). _________________________________________________ RONALD W. SCHOLZ 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).