Citation Nr: 1335565 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-29 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for left L5 radiculopathy, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to November 1964. This matter comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran was afforded a hearing before the Board in September 2007. A transcript of the testimony offered at this hearing has been associated with the record. In November 2012, this matter was last before the Board at which time it was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND When this matter was last before the Board, the Board remanded the claims, inter alia, to afford the Veteran a VA examination to address the indication that the Veteran had a congenital defect or disease of the low back in furtherance of substantiating the claims. In pertinent part, if it was indicated that the Veteran entered service with a congenital defect of the back, the examiner was asked to render a medical opinion as to whether the evidence showed that it, i.e. the defect, was at least as likely as not (50 percent or greater probability) subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. In December 2012, the Veteran was afforded a VA examination. The December 2012 VA examination report indicates that the Veteran entered service with congenital spondylolisthesis, identified as a defect, as opposed to a disease. The examination report also documents that the examiner that conducted the examination concluded that "the chronic [low back] disorder is congenital and not due to mil[itary] s[ervice] or aggr[avated] or caused by mil[itary] service" and was therefore "less likely than not sec[ondary] to rel[ated] to or [the] result of mil[itary] service," but rather as likely as not due to a 2004 fall. The report indicates that the Veteran had L5 sciatic radiculopathy, related to the assessed low back condition. The requested opinion is not in conformity with the Board's remand directives. As noted above, the examiner, besides addressing in-service incurrence or aggravation, was requested to address whether it was at least as likely as not that any identified congenital defect of the back was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital defect. The proffered opinion does not address this question. Accordingly, in light of Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"), this matter must again be remanded to obtain an addendum opinion. The claim of service connection for left L5 radiculopathy is inextricably intertwined with the claim remanded and must be deferred pending readjudication of this claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner that offered the December 2012 opinion for an addendum opinion. If the December 2012 VA examiner is not available, the claims file must be available to another appropriate health care provider. After a review of the claims file, the author of the December 2012 VA opinion or other health care provider MUST respond to the following question and provide a full statement of the basis for the conclusion(s) reached: Is it at least as likely as not (50 percent or greater probability) that the identified congenital defect of spondylolisthesis was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect? The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. After the development directed above has been completed to the extent possible, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. (CONTINUED ON NEXT PAGE) The Veteran 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). _________________________________________________ A. C. MACKENZIE 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).