Citation Nr: 1329623	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  07-13 113	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for residuals of a low 
back injury.


REPRESENTATION

Veteran represented by:	Sheldon N. Sandler, Esq. of 
	Young, Conway, Stragatt & Taylor, LLP


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from October to November 
1981.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an October 2006 rating decision by which the 
RO denied entitlement to service connection for residuals of 
a low back injury.  The Veteran appealed the RO's denial to 
the Board.

In an August 2011 rating decision, the Board denied 
entitlement to service connection for residuals of a low 
back injury.  The Veteran appealed the Board's determination 
to the United States Court of Appeals for Veterans Claims 
(Court).

In a January 2013 Memorandum Decision, the Court vacated the 
Board's August 2011 decision and remanded the issue to the 
Board for further action consistent with the Memorandum 
Decision.

The record contained a discrepancy regarding representation.  
The record contained a VA Form 21-22 (Appointment of 
Veterans Service Organization as Claimant's Representative) 
indicating that the Veteran was represented by the Disabled 
American Veterans (DAV).  The record also contained a letter 
dated in May 2013 indicating that S.N. Sandler, Esq. of the 
firm Young, Conway, Stragatt & Taylor, LLP was representing 
the Veteran.  In September 2013, a DAV representative 
contacted the Veteran, who indicated that he was being 
represented exclusively by Young, Conway, Stragatt & Taylor, 
LLP.  Thus, in a Memorandum dated in September 2013, the DAV 
asserted that it was no longer representing the Veteran in 
his dealings before the Board.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the Veteran 
if further action is required on his part.


REMAND

Further development is required before the Board may render 
a decision in this matter.

In April 2009, the Veteran was afforded a VA orthopedic 
examination for, in essence, a diagnosis of all extant low 
back disabilities and an opinion regarding the likely 
etiology of each disability diagnosed.  The examiner opined 
that no current low back disability was due to a documented 
injury in service.  The Court, however, found that the VA 
examiner's opinion was lacking because the examiner failed 
to take into account the Veteran's assertions of continuity 
of low back symptomatology since 1981 (lay evidence) as well 
as the full post-service medical history to include a disc 
bulge seen on MRI is 1991.  As such, a new VA orthopedic 
examination must be scheduled.  The examination instructions 
are contained in the first paragraph below.

Accordingly, the case is REMANDED to the RO/AMC for the 
following action:

1.  Schedule a VA orthopedic examination to 
determine the nature and etiology of the 
Veteran's claimed low back disability.  The 
examiner is asked to diagnose all extant low back 
disabilities.  As to each disability identified, 
the examiner must opine regarding whether it is 
at least as likely as not (50 percent or greater 
likelihood) that the disability is related to the 
Veteran's period of active duty service.

Note: As used above, the term "at least as likely 
as not" does not mean merely within the realm of 
medical possibility, but rather that the weight 
of medical evidence both for and against a 
conclusion is so evenly divided that it is as 
medically sound to find in favor of causation as 
it is to find against it.

In rendering the opinion, the examiner must take 
in to consideration the Veteran's stated medical 
history.  In addition, the examiner is to review 
all pertinent documents in the claims file in 
conjunction with the examination.

The examination report must indicate whether 
requested review of the record took place.  All 
opinions are to be accompanied by a rationale 
consistent with the evidence of record.  If the 
requested medical opinion cannot be given, the 
examiner should state the reason(s) why.

2.  After conducting any the foregoing 
development and any other development deemed 
necessary, the RO should readjudicate the 
Veteran's claim, considering all the evidence of 
record.  If the benefit sought remains denied, 
the Veteran and his representative should be 
provided with a supplemental statement of the 
case and the appropriate opportunity to respond.

The Veteran 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 or 
by the Court for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 
U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_________________________________________________
MATTHEW D. TENNER
Acting 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) (2013).