Citation Nr: 1333125 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-12 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sisters ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from October 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a March 2011 Travel Board hearing. In a September 2011 decision, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, and by a January 2013 Order, the Court approved a Joint Motion for Remand, thereby vacating the Board's September 2011 decision and remanded the case for development consistent with the Joint Motion. In June 2013, the Board remanded the issue for further development. 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 While further delay is regrettable, the Board observes that additional development is still required prior to adjudicating the Veteran's claim for service connection. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. 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. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the Veteran gives a history of an in-service back injury occurring as a result of heavy lifting. He contends that his back pain did not resolve in service and that it has continued intermittently over the years. He asserts that his back condition was aggravated by subsequent work-related injury. The Veteran's sister testified that she witnessed the Veteran's back problems first-hand "right after discharge in '76." The Veteran's service treatment records show that the Veteran was treated on two occasions in July 1974 for back pain. There are no findings pertaining to the back on his 1976 separation examination report. The Board notes that the Veteran is competent to report that he has had back pain since separation from service and that the Veteran's sister is competent to report that the Veteran had back problems after service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has also informed the VA that he incurred two post-service work-related lumbar spine injuries, the later one occurring in May 1999. A June 2009 VA examination of the spine revealed the following diagnoses: acute lumbosacral strain in 1974 resolved with treatment with no symptoms described at the time of discharge from the service in 1976; and degenerative disc disease of the lumbar spine with back pain, right leg radiation, MRI consistent with right L5-S1 protrusion with moderate disability and slight progression. The examiner opined that it was less likely than not that the current disc disease of the lumbar spine was secondary to the lumbar back sprain that incurred in 1976. Rather, the examiner noted that the available data showed that "this is a work-related injury." In rendering the negative opinion, the examiner appeared to rely on the absence of back complaints at service discharge as well as the Veteran's reports of work-related back injury following service. In light of the above noted deficiencies, the Board remanded the claim in June 2013 for further VA examination. Thereafter, a VA examination was conducted in July 2013 and an addendum was provided in August 2013. The examiner concluded that the Veteran's degenerative disc disease is not connected to his military service. With respect to a rationale, the examiner, in both the June 2013 examination report and the August 2013 addendum, provided a lengthy discussion of the medical evidence of record with an emphasis on the absence of medical documentation of back complaints at service discharge and for many years following service discharge. However, the examiner did not comment on the Veteran's lay statements of intermittent back pain since service discharge as referenced by the Board in the June 2013 remand. As noted above, the Veteran is competent to report ongoing back pain since service and the examiner's omission in directly addressing the Veteran's contentions renders both the July 2003 examination report and the August 2013 addendum inadequate. Therefore, further clarification is warranted. See Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims folder to a VA physician who has not previously examined him for a clarifying opinion. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay assertions. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not that a low back disorder is the result of a disease or injury in service as opposed to it being more likely the result of some other cause or factors. In rendering this medical opinion, the examiner is asked to comment on the Veteran's assertion that his back pain continued after his discharge from service and that the back condition was aggravated by post-service injury. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner determines that the Veteran needs to be re-examined prior to offering the requested opinions, he should be so scheduled. 2. The RO must notify the Veteran that it is his responsibility to report for an examination if one is scheduled for him and to cooperate in the development of the claim. The consequences for 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). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).