Citation Nr: 1334387 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-03 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: V.A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1973 to March 1979. He had additional service in the Indiana Army National Guard. His exact dates of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in that additional capacity have not been verified, although it has been confirmed he was on ACDUTRA in August 1981 during the specific time at issue. This appeal to the Board of Veterans' Appeals (Board) is from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi - which, in relevant part, determined he had not submitted new and material evidence to reopen a finally decided claim of service connection for a low back disorder as a residual of an injury. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2013) (the regulations detailing the procedures for appealing adverse RO determinations to the Board and the finality of RO determinations not timely appealed to the Board). In September 2008, as support for his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, commonly referred to as a Travel Board hearing. During and since the hearing, the Veteran has submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304(c) (2013). In a January 2010 decision, the Board, in pertinent part, reopened the claim for a low back disorder on the basis of new and material evidence, and then remanded this claim to the RO via the Appeals Management Center (AMC) for further development before readjudicating this claim on its underlying merits, i.e., on a de novo basis. In a December 2011 decision, the Board denied entitlement to service connection for a low back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court/CAVC), and in a May 2013 Memorandum Decision since issued the Court vacated the Board's decision and remanded this claim to the Board for further development and readjudication consistent with the Court's decision. The Board, therefore, is in turn remanding the claim to the RO to comply with these directives. REMAND As the Court has indicated, further development of the evidence is required before the Board can readjudicate this claim of entitlement to service connection for a low back disability. The Court primarily indicated that further development of this claim is required before readjucating it because, when previously denying this claim, the Board impermissibly relied on an inadequate February 2010 VA compensation examination and opinion, which the Board had obtained by earlier remanding the claim to try and reconcile other medical opinions in the file that were in conflict. In its May 2013 Memorandum Decision, the Court determined the Board erred in relying on that examiner's opinion since it contained unsupported and inconsistent medical conclusions. As such, a new VA medical examination and opinion must be obtained. The Court also pointed out that evidence in the file indicates the Veteran is receiving disability benefits from the Social Security Administration (SSA) - albeit for several different conditions but including for his low back disability at issue in this appeal. These records therefore are relevant to this appeal, so must be obtained and considered when readjudicating this claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is required to obtain SSA records in instances when they may be relevant to the VA claim). Accordingly, this claim is REMANDED to the RO for the following additional development and consideration: 1. Obtain the Veteran's SSA records, not only a copy of the favorable decision but also the medical records considered in making the favorable determination. Because these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these additional records as this VA regulation requires. Also appropriately notify the Veteran if unable to obtain these additional records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of these SSA records, schedule another VA compensation examination for a supplemental medical nexus opinion regarding the etiology of the Veteran's claimed low back disability. Namely, the VA examiner should first identify all existing low back disabilities - including those the Veteran has had since the filing of this claim, even if now resolved - and then opine on the likelihood (very likely, as likely as not, or unlikely) that any current low back disability is related or attributable to his military service. In making this necessary determination, the VA examiner must specifically note complaints, treatment, and evaluation the Veteran received in the immediate aftermath of an August 1981 documented injury during ACDUTRA when he was thrown from a truck and discuss whether any present low back disabilities are attributable, even in part, to that incident. The examiner should if possibly try and reconcile the conflicting opinions of the others who have commented on this determinative issue of causation, but in so doing restrict his opinion to making only medical, not factual (i.e., legal) determinations. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, 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 causation as it is to find against it. It is most imperative the examiner discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting his/her conclusions. If this requested medical nexus opinion cannot be provided without resorting to mere speculation, the examiner must discuss the reason(s) why a response is not possible or feasible. So merely saying he or she cannot respond will not suffice. To facilitate this opinion, the examiner must review the pertinent evidence in the claims file in conjunction with the examination, including the Court's (CAVC's) May 2013 Memorandum Decision, and the examination report should confirm the claims file was reviewed. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his attorney another Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court 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). _________________________________________________ KEITH W. ALLEN 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).