Citation Nr: 1331275 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-16 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Senior Counsel INTRODUCTION The Veteran had active service from August 1965 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing held at the RO in August 2009. The Board previously remanded this case in September 2009 and August 2011. The Board notes that claims seeking service connection for bilateral upper and lower extremity peripheral neuropathy remain pending. The record reflects that the RO has recently re-started development on those issues, and is now actively developing the issues for adjudication. 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 contends that he injured his low back in service when he was assaulted during a Survival, Evasion, Resistance, and Escape (SERE) exercise. He maintains that he was medevaced for treatment of the injury, and has continued to experience low back problems until today. He is currently treated for degenerative disc disease. The Board has found his account to be credible. In connection with his claim, the Veteran attended a VA examination in May 2010. He reported injuring his back during survival training when he was assaulted. The examiner diagnosed degenerative disc disease of the lumbar spine. The examiner concluded that the degenerative disc disease was not related to service, as there was no documentation of the injury, or supporting documentation in the claims files of any complaints of low back pain in service. In the August 2011 remand, the Board determined that the May 2010 opinion was inadequate, as it inappropriately discounted the Veteran's description of the in-service injury. The Board remanded the case for the same examiner to offer a new opinion that took into account the Veteran's credible description of the in-service back injury. The Board specified that the examiner was to offer a rationale for any opinion expressed. In September 2011, the examiner provided an addendum opinion. In its entirety, the opinion states: Taking into account the veterans [sic] description of his injury and symptoms, and discounting the lack of supporting documentation[,] the veterans [sic] current condition, [d]egenerative disc disease of the lumbar spine, noted to be mild to moderate on X-ray, is consistent with natural aging [(62 years of age)] and LESS LIKELY THAN NOT caused by, related to, or worsened beyond natural progression by military service or the reported events of 1969 ([approximately 41 years ago]). Given the absence of any rationale accompanying the above opinion, it is evident that the examiner did not make a serious effort to revisit the questions involved in this case, but merely restated his conclusion with the additional assurance that he was taking the Veteran's description into account. The examiner did not comply with the specific instructions of the Board to provide a rationale for his opinion. As the addendum opinion is inadequate, the Board will remand the case for another VA examination of the Veteran, preferably by a different examiner. The Board notes that the Veteran has made repeated mention that there were over 100 persons in his SERE training class that VA could locate and contact. The Board advises the Veteran that responsibility for locating those individuals lies with him. If he locates an individual he believes has information pertinent to his claim, and provided he supplies VA with the appropriate name and address, he can request that VA assist him in contacting that individual. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for VA examination of the Veteran by an individual with appropriate expertise, preferably one who has not previously examined the Veteran in connection with this appeal, to determine the nature and etiology of the Veteran's low back disability. The claims files must be made available for the examiner's review. The examiner must fully explain all findings and opinions in sufficient detail, accepting as true the Veteran's description of his in-service back injury. The examiner should note all pertinent medical complaints, symptoms, and clinical findings. Following a review of the relevant lay and medical evidence in the claims files, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's currently shown back disorder is proximately due to or the result of the in-service back injury, or is otherwise etiologically related to service or was manifest within one year of discharge from service. The examiner must provide a rationale for any opinion expressed and is advised that if a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report and discuss why an opinion is not possible. 2. After conducting any additional development deemed necessary, the RO/AMC should readjudicate the claim, considering all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board, if in order. 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 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). _________________________________________________ JAMES L. MARCH 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).