Citation Nr: 1332222 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 06-07 357A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned in April 2011. A transcript of that hearing has been associated with the claims file. This case was previously remanded by the Board in July 2011, October 2012 and April 2013 for additional development. The case has now been returned to the Board for further review. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on his part. REMAND The issues on appeal were last before the Board in April 2013 when they were remanded in order to obtain an addendum VA examination. The examiner was directed to provide medical opinions as to whether the Veteran has a low back and/or left shoulder disability which is etiologically linked to her active duty service. The examiner was specifically directed to discuss the Veteran's statements regarding the onset of her pain and to also discuss the service treatment records which referenced complaints of back pain. A VA examination was conducted in June 2013. Unfortunately, the examination report is not responsive to the Board's April 2013 remand instructions. The report of the June 2013 VA examination is completely devoid of any discussion or even reference to the Veteran's statements regarding the onset of her pain and is also devoid of any discussion of the service treatment records which referenced complaints of back pain. This is significant, as the examiner has opined that the Veteran's current disorders are due to post-service disease and injury but failed to address the in-service complaints which suggest the back and shoulder disorders were present prior to the time that the Veteran had problems due to menopause, aging and inadequate intake of vitamins. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans' Claims, holding "when remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance." The issues on appeal must be remanded in order to obtain a VA examination report which substantially complies with the Board's remand instructions. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims file to the December 2012 and April 2013 VA examiner or to another suitably qualified VA examiner for a clarifying opinion as to the etiology of the Veteran's claimed low back disability and left shoulder disability. The examiner should note that the claims file was reviewed. If the examiner is not available, the AMC/RO should request that an appropriate examiner review the claims file and prior examination reports. The examiner is asked to answer the following: (a). Furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current back disability: (i) had its onset during active duty from August 1965 to August 1967; or, (ii) that such disability was caused by any incident or event that occurred during such period (i.e. the automobile accidents in service)? (b). Furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current left shoulder disability: (i) had its onset during her active duty from August 1965 to August 1967; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. the automobile accidents in service or overuse due to her military duties)? In providing the opinions, the examiner must discuss the significance, if any, of the Veteran's statements regarding the onset of her pain and the service treatment records revealing complaints of back pain. Inform the examiner that the Veteran is competent to report on when she experienced onset of pain. 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 that conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion provided. 2. Following completion of the foregoing, the AMC/RO should readjudicate the merits of the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case that considers all evidence received subsequent to the last adjudication of the claim. Give an adequate amount of time for response. Thereafter, return the case to the Board for further appellate consideration. The appellant and her representative have 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). 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). _________________________________________________ L. M. Barnard 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).