Citation Nr: 1331126 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-23 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a disability of the back, to include as due to a pilonidal sinus (cyst). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1951 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying service connection for chronic low back pain. This claim was previously remanded by the Board in June 2013 for further evidentiary development. The Veteran testified at a video conference hearing before the undersigned in March 2013. A written transcript of this hearing has been prepared and incorporated into the evidence of record. As noted in the previous remand, the Veteran's claim was previously treated as one of entitlement to service connection for low back pain. In light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), and Brokowski v. Shinseki, 23 Vet. App. 79 (2009), however, the issue was changed to entitlement to service connection for low back pain as one that encompasses any residuals of a pilonidal cyst in order to address the Veteran's complained of symptoms. 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 Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This claim was previously remanded by the Board in June 2013. The Veteran was to be scheduled for a VA examination to determine whether he suffered from any current residuals of a pilonidal cyst. The examiner was also to opine as to whether it was at least as likely as not that the Veteran's current spine disability manifested as a result of the in-service pilonidal cyst. In other words, the examiner was to offer two separate opinions. As will be outlined below, the requested development was not completed, and as such, a new examination is required before appellate review may proceed. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). The record reflects that the Veteran was afforded a VA examination in July 2013. The examiner opined that "[t]he claimed condition was less likely than not . . . incurred in or caused by the claimed in-service injury, event, or illness." The examiner's rationale was: After review of the Veteran's C-file/STR, there is medical evidence of a pilondial [sic] cyst. There is no medical evidence to support the Veteran's pilondial [sic] cyst or excision of his pilondial [sic] cyst caused the Veteran's lumbar djd/spondylosis. There is no medical evidence of lumbar problems during the Veteran's military service noted in his STR. The examiner, however, did not specifically address whether the Veteran suffered from any residuals of a pilonidal cyst. The fact that there is no medical evidence of lumbar problems during the Veteran's military service is not completely dispositive of the question of whether the Veteran has a current disability that is etiologically related to or a continuing disease process of the documented in-service pilonidal cyst. Accordingly, the case is REMANDED for the following action: 1. The Veteran should again be scheduled for a VA examination or VA examinations before an appropriate examiner or examiners to determine whether he suffers from any disability of the back that manifested during, or as a result of, active military service, to include as secondary to his in-service pilonidal cyst. This includes any disability of the spinal column itself, as well as disabilities of the skin, nerves or muscles. His claims file and a copy of this remand must be made available for review. The examiner should perform all necessary tests and studies, and address the following: (a) Does the Veteran suffer from any current residual of a pilonidal cyst, to include disabilities of the spine, skin, nerves or musculature? (b) Regardless of whether a residual of a pilonidal cyst is discovered, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran suffers from any current disability of the back that was: (i) caused by the in-service pilonidal cyst (i.e., is any current back disorder etiologically or a continuing disease process of the pilonidal cyst documented in service) (a pilonidal sinus is clearly noted in the Veteran's August 1955 discharge examination and there is a record of hospitalization for excision of a pilonidal cyst in December 1955) or; (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by the in-service pilonidal cyst. A complete rationale must be provided for all opinions offered and any lay statements provided by the Veteran in support of his claim must be fully considered and discussed. The Board notes that the Veteran has described back pain since undergoing treatment to resolve his pilonidal cyst. 2. The RO/AMC should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished. If all questions posed are not sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry. 3. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the claim remains denied, the RO/AMC should provide the appellant a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. The appellant has 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH 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) (2012).