Citation Nr: 1330328 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 03-34 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include scoliosis of the lumbar spine and osteoarthritis of the lumbar spine, and to include as secondary to the service-connected bilateral knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, denied service connection for degenerative arthritis of the lumbar spine. The Veteran filed a Notice of Disagreement (NOD) in November 2002. The RO issued a Statement of the Case (SOC) in August 2003. In October 2003, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. In December 2004, the Veteran, accompanied by his representative, testified at a Central Office Board hearing conducted before the undersigned Veterans Law Judge (VLJ). The transcript of this hearing is part of the record. In March 2005 and February 2008, the Board remanded this case to the RO for additional evidentiary development. The appeal was then returned to the Board, and in a July 2010 decision, the Board denied the Veteran's claim of entitlement to service connection for a lumbar spine disorder. The Veteran appealed the lumbar spine decision to the United States Court of Appeals for Veterans Claims (Court). The Board also denied other issues in the July 2010 decision, but the Veteran did not appeal those issues to the Court. In a May 2012 memorandum decision, the Court vacated the July 2010 Board decision regarding the lumbar spine issue. The Court then remanded the lumbar spine issue back to the Board for further readjudication. In April 2013, the Board remanded the lumbar spine issue back to the RO for additional evidentiary development. The case has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this remand, along with the Veteran's paper claims file. 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. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Recently, in April 2013, the Board remanded the Veteran's claim to the RO/AMC for, in pertinent part, a VA medical opinion. Upon remand, the Veteran was afforded a VA addendum medical opinion in April 2013. Upon a review of this medical opinion, the Board finds that the VA examiner did not address all of the Board's remand directives. Specifically, the examiner provided a negative nexus medical opinion concerning the Veteran's currently diagnosed scoliosis of the lumbar spine. However, the examiner did not address the documented complaints of scoliosis in the lumbar spine, to include the two complaints of scoliosis in May 1967. The examiner also found that there was no visit documented in the claims file pertaining the Veteran's back during his one year hospitalization period for his lung disorder. However, as stated by the Board in its April 2013 remand, this is incorrect. The Veteran's May 1967 hospitalization discharge report documents scoliosis of the lumbar spine. Therefore, the examiner's medical opinion was based on erroneous facts and is thus inadequate. The Board specifically asked for this medical opinion in its remand. The Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, this claim must again be remanded for the RO/AMC to obtain a VA addendum medical opinion for the issue. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). The Veteran is hereby notified that it is his responsibility to report for any examination scheduled and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following actions: 1. After obtaining the above records, the RO/AMC shall ask the August 2005 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA spine examination with an appropriate expert to determine the etiology of his currently diagnosed scoliosis of the lumbar spine. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and offer an opinion addressing whether is it at least as likely as not that (a 50 percent probability or greater) that the Veteran's current scoliosis of the lumbar spine was incurred during his active military service from March 1966 to March 1968. In forming his or her medical opinion, the examiner must specifically address the following: * The May 1967 in-service hospitalization discharge that documents "mild scoliosis;" * The May 1967 service treatment record that documents "scoliosis of the left [spine]" after the Veteran's hospitalization; * The October 1967 in-service X-rays that document "scoliosis of the spine to the left" and "slight curvature convexity to the right in the upper lumbar area;" and, * The Veteran's lay statements regarding the in-service incurrence of scoliosis after being hit in the back with a rifle butt and his statements regarding the progression of the disorder. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 2. After the above actions have been completed, readjudicate the Veteran's claim of entitlement to service connection for scoliosis. If and only if service connection is granted for the Veteran's scoliosis, then the RO/AMC shall ask the August 2005 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA spine examination with an appropriate expert to determine the etiology of his currently diagnosed osteoarthritis of the lumbar spine. The VA examiner should thoroughly review the Veteran's VA claims file, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Is it at least as likely as not that the Veteran's currently diagnosed osteoarthritis of the lumbar spine was aggravated (permanently worsened beyond the normal progression) by his scoliosis? Please explain the reasons for your opinion. b) Is it at least as likely as not that the Veteran's currently diagnosed osteoarthritis of the lumbar spine was caused by his scoliosis? Please explain the reasons for your opinion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 3. After the above actions have been completed, readjudicate the Veteran's appeal. If the appeal remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). _________________________________________________ DEBORAH W. SINGLETON 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 Court. 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).