Citation Nr: 1332829 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-35 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a chronic upper back disability, to include the thoracic and cervical spine, to include on a secondary basis . REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and M.F. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to April 1987, October 1992 to February 1993, November 2001 to February 2002, and January 2004 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for an upper back condition. In August 2005, the Veteran requested that his claims folder be transferred to the Jackson, Mississippi RO. Thus, the RO in Jackson, Mississippi is currently the agency of original jurisdiction in this matter. In July 2007, the Veteran testified at a hearing before a Decision Review Officer at the RO. In September 2008, the Veteran testified at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. In November 2008 and again in December 2009, this matter was remanded for further development. In August 2011, the Board issued a decision, denying the claim for service connection for a chronic upper back disability, to include the thoracic and cervical spine. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Joint Motion for Remand (JMR) filed with the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded. A July 2012 Court Order granted the JMR. In January 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, in order to obtain updated treatment records and an examination and opinion addressing whether secondary service connection for an upper back disability is warranted. In July 2013, a VA examination and opinion was obtained, addressing the secondary service connection claim. However, appropriate rationale for the opinion was not provided; thus there was not substantial compliance with the January 2013 remand directives, and another remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 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 on his part. REMAND The Veteran contends he has an upper back disability that is related to a back injury he sustained in service (service connection for a lumbar back disability has been granted). He has alternatively contended he has a chronic upper back disability related to the service-connected lumbar degenerative disc disease with chronic lower back pain. In January 2013, this matter was remanded, in part, to obtain an opinion addressing whether secondary service connection for an upper back disability was warranted. In a VA DBQ (disability benefits questionnaire) examination in July 2013, the examiner did address the possible etiology of the Veteran's upper (cervical) back disability, to include whether such disability is secondary to the service-connected lumbar disability. In that regard, the examiner opined it was less likely as not that an upper back condition, including thoracic and/or cervical spine condition, was of service onset or otherwise related to, proximately due to, or permanently worsened by the service-connected degenerative disc disease of the lumbar spine or other service-connected disability. While the examiner provided a lengthy rationale, that rationale primarily pertained to the direct service connection opinion, rather than to the secondary service connection opinion. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the VA DBQ examination report dated in July 2013, the Board concludes that such report is inadequate and another is warranted. Based on the foregoing, the Board concludes that supporting rationale, regarding the opinion of whether the Veteran's chronic upper back disability is at least as likely as not related to or aggravated by his service-connected lumbar disability, is needed. See Stegall v. West, supra; see also Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Arrange for the VA examiner who provided the July 2013 examination report and opinion to review the Veteran's claims folder, and specifically note that such review has been accomplished. The examiner should be requested to offer supporting rationale for the opinion that the Veteran's upper back disability is significantly less likely as not proximately due to or permanently worsened by the service-connected lumbar degenerative disc disease with chronic lower back pain or other service-connected disability. If the examiner cannot answer the above question without resorting to mere speculation, the examiner should state why this is so. If the original VA examiner (from 2013) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. 2. Thereafter, readjudicate the issue on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, and he should also be given an opportunity to respond to the SSOC. 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). 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). _________________________________________________ BARBARA B. COPELAND 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).