Citation Nr: 1334200 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-15 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from August 1963 to February 1964, with subsequent periods of ACDUTRA, annual active duty for training (ANACDUTRA), and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals Board on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2008, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript of the hearing has been associated with the claims file. In May 2011, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in December 2008 had retired and advised him that he had the right to a new hearing before the VLJ who would decide his case. See 38 U.S.C.A. § 7107(c (West 2002) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). In a May 2011 letter, the Veteran indicated that he did not desire an additional personal hearing before the Board. A Board decision in June 2011 denied service connection for a back disorder, to include as secondary to a service-connected bilateral knee disability. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in August 2012, the Court vacated the Board's denial of this service connection claim and remanded the case for readjudication in accordance with the decision. In March 2013, the Board remanded this matter to the agency of original jurisdiction for further development. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to, in part, afford the Veteran a VA back examination to determine etiology of his claimed back condition. The Veteran was afforded an examination; however, the examination afforded the Veteran did not comply with the Board's remand directives. So the Board must again remand this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. In a May 2013 Statement in Support of Claim, the Veteran clarified that his claim, for entitlement to service connection for a back condition, does not include the theory of entitlement to include as secondary to his service-connected knee disabilities. Accordingly, the Board has recharacterized the issue as listed above. This appeal was processed using the VA electronic claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. REMAND Regrettably, a remand is necessary for further evidentiary development. The Veteran has contended that he injured his back in service during the same incident that resulted in his service-connected bilateral knee disability. See e.g., March 2006 claim, October 2010 statement. In connection with his bilateral knee claim, the Veteran reported that he injured his knees after scaling a wall in an obstacle course during training. See December 2008 Hearing Transcript (T.) at 7. In a July 2009 decision, the Board concluded that service connection for a bilateral knee disability was warranted based on the in-service injury. The Board remanded the back issue for a VA examination to determine the existence and etiology of a back disorder. The Veteran was afforded a VA examination in September 2009. The examiner provided a negative nexus opinion with the rationale that there was no record of any in-service injury and that the Veteran's bilateral knee disability would not lead to degenerative changes of the lumbar spine. However, in light of the Board granting service connection for the knees based on the same in-service injury, the Board concluded that this rationale was not adequate. The Board conceded that the Veteran did indeed have an injury from scaling a wall in an obstacle course. Therefore, in the Board's most recent remand, in March 2013, the RO/AMC was directed to afford the Veteran a VA back examination to adequately address whether the conceded in-service injury caused any current back disorder. The Veteran was afforded a VA examination in May 2013; however the examiner failed to accept the Veteran's reports as to the in service injury and rendered a medical opinion with nearly identical rationale as the September 2009 examiner. The examiner stated the rationale behind his opinion is there is "no record in [the claims file] of [a] back condition including [an] exam in 1968[,] which is 5 [years] after the incident in basic." In a September 2013 appellate brief, the Veteran's representative asserts that the May 2013 VA examiner failed to comply with the Board's remand directives and that the AMC failed to order an addendum opinion as directed by the Board's remand. The Board finds the examiner's rationale to be inadequate as the examiner failed to comply with the Board's remand directives. See Stegall, 11 Vet. App. 268, 271. If VA provides the claimant an examination in accordance with a duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, upon remand, an addendum medical opinion shall be obtained. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's electronic claims file, including a copy of this remand, to the May 2013 VA examiner for an addendum medical opinion to determine existence and etiology of a back disorder. If the May 2013 VA examiner is not available, another appropriately qualified examiner shall be designated. The examiner should accept the Veteran's reports of the in service injury. The Veteran described this injury as falling from an obstacle course and landing flat footed, with the impact sending a shockwave through his body. This event has been conceded by the Board and verification by the examiner is not necessary. The examiner is requested to opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed back disorder is related to his military service, including the in service obstacle course injury. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity that this question is outside the scope of a medical professional conversant in VA practices. 2. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 3. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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 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). _________________________________________________ MICHAEL MARTIN 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) (2013).