Citation Nr: 1341201 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 04-14 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to the service-connected residuals of a left foot injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2006, the Board denied the Veteran's claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Consequent to a July 2008 memorandum decision by the Court, the Board's May 2006 decision was vacated and the Veteran's claim was remanded to the Board. In February 2009 and March 2011, the Board remanded the Veteran's claim for further development. An in-person hearing was held on this issue in January 2005, at the RO in Philadelphia, Pennsylvania. A transcript of that proceeding is of record. In December 2010, additional testimony on this issue was taken by means of video conferencing equipment with the Veteran sitting in Philadelphia, Pennsylvania, before S. C. Krembs, Acting Veterans Law Judge, sitting in Washington, DC. A transcript of that proceeding is also of record. Veterans Law Judge McDonald and Acting Veterans Law Judge Krembs were designated by the Chairman to conduct these hearings pursuant to 38 U.S.C.A. § 7107(c), (e)(2) (West 2002), and are included in the panel of judges rendering the determination in this case. In April 2013 the Veteran was notified of the opportunity to have an additional hearing before a third VLJ who would be the third member of the panel of three judges who would decide his appeal. He was informed that an additional hearing was entirely optional and was not required to proceed with an adjudication of the appeal. The Veteran did not respond. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) (holding that a claimant is entitled to a hearing before every member of the panel that will decide his appeal). As such, the Board concludes that the Veteran has waived his right to a hearing before the third member of the panel of judges deciding his appeal, and that there is no prejudice in proceeding with consideration of the claim. 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 Although the Board regrets the further delay to this appeal, an additional remand is necessary, as the November 2012 VA examination obtained as a result of the last remand is inadequate. On remand, the Board instructed the examiner to provide opinions regarding the etiology of the Veteran's back disorder. In rendering the requested opinions, the Board instructed the examiner to address whether any back disorder found was related to the Veteran's military service, or whether it was proximately related to a service-connected disorder, to include the Veteran's service-connected residuals of a left foot injury. The November 2012 examination report, however, only included an opinion addressing whether the back disorder had its onset in service; the examiner did not address whether the disorder was proximately related to a service-connected disorder, to include the Veteran's service-connected residuals of a left foot injury. Additionally, the opinion provided is inadequate, as it appears that the entire claims file was not available for review at the time of the examination; the examiner referenced being unable to find critical documents in the file, and the temporary file and the permanent file were only reunited after a return of the appeal to the Board. As there has not been substantial compliance with the development requested at the time of the last remand, an additional remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's complete claims folder, including a copy of this remand, to the examiner who conducted the November 2012 examination. No further examination of the Veteran is necessary, unless the examiner determines that additional clinical testing is necessary to ensure compliance with the Board's remand instructions. If the examiner who conducted the November 2012 examination is not available, forward the claims file for review by another appropriate examiner. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA/VBMS) should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. The VA examiner must provide opinions addressing whether any back disorder found is causally related to an event or injury in service, and, if not, whether the current back disorder is proximately related to a service-connected disorder, to include the Veteran's service-connected residuals of a left foot injury. In rendering these opinions, the examiner should address the Veteran's private physician's January 2005 and March 2006 opinion letters, and the April 2010 opinion from his chiropractor (J.J.M.), in which the chiropractor relates the Veteran's back disability to his service-connected left foot disability. The rationale for all opinions expressed must be provided. If the examiner cannot render an opinion without resorting to mere speculation, the examiner must thoroughly explain why an opinion would require speculation. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the action taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, provide the Veteran and his representative a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ________________________________ _________________________ JOY A. MCDONALD S.C. KREMBS Veterans Law Judge, Board of Acting Veterans Law Judge, Board Veterans Appeals of Veterans Appeals _________________________________________________ ROBERT E. SULLIVAN Chief 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).