Citation Nr: 1414338 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-02 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc and joint disease of the lumbar spine with progressive right sciatica (also claimed as rheumatoid arthritis and osteoarthritis). 2. Entitlement to service connection for degenerative disc and joint disease of the cervical spine with progressive right sciatica (also claimed as rheumatoid arthritis and osteoarthritis). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to September 1976. The Veteran also served on active duty for training (ACDUTRA) from February 1995 to March 1995. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011 the Board remanded the issues on appeal and the issue of entitlement to service connection for right calf strain to the RO for further development. During the pendency of the appeal, an April 2012 rating decision granted the Veteran service connection for right calf strain and assigned an initial rating of 10 percent effective January 20, 2009. Thus, the full benefits sought on appeal have been granted and that issue is no longer before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional records however; they are not pertinent to the present appeal. 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 additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In June 2011 the Board remanded the Veteran's claims in order for the Veteran to be sent VCAA notice; he was sent VCAA notice in August 2011. His claims were also remanded in order for him to be afforded VA examinations; for both the Veteran's lumbar spine and cervical spine the VA examiner was asked to opine if it was at least as likely as not due to his military service from August 1973 to September 1976, at least likely as not due to his ACDUTRA service from February 1995 to March 1995, and if rheumatoid arthritis was present. He was afforded a VA examination in August 2011; the VA examiner stated that the Veteran did not have rheumatoid arthritis of the lumbar spine or of the cervical spine. She also stated that the Veteran's current diagnoses of degenerative joint disease of the lumbar spine and degenerative joint disease of the cervical spine less likely than not had its onset during ACDUTRA from February 1995 to March 1995. The Board finds that in regards to those directives the requested development has been completed and no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The August 2011 VA examiner did not address the Board remand directives of whether the Veteran's degenerative joint disease of the lumbar spine and degenerative joint disease of the cervical spine was at least likely as not related to his military service from August 1973 to September 1976. In a June 2012 VA medical opinion a different VA examiner stated that the Veteran's service treatment records were negative for a back condition and a neck condition "during the first period of ACDUTRA from 8/30/1973 - 5/19/1976 (separation exam)." She then stated that "no medical opinion can be rendered as no condition is diagnosed." However, the Board finds that this is not an adequate opinion since he does have diagnoses of degenerative joint disease of the lumbar spine and cervical spine of record; to include at the August 2011 VA examination. Therefore, the Board finds that the VA examiner did not answer the questions on appeal. Where the remand orders of the Board 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). Thus, the Board finds that the Veteran's claims file must be sent to the June 2012VA examiner for an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA outpatient treatment records. 2. Return the claims file to the June 2012 VA examiner in order to provide an additional addendum opinion. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should review the Veteran's claims folder and indicate in the report that the claims folder was reviewed. The VA examiner should answer the following questions: A) For the Veteran's currently diagnosed lumbar spine disorder, whether it at least as likely as not (50 percent or greater probability) had its onset or is due to his period of active duty from August 1973 to September 1976. B) For the Veteran's currently diagnosed cervical spine disorder, whether it at least as likely as not (50 percent or greater probability) had its onset or is due to his period of active duty from August 1973 to September 1976. The examiner should address the Veteran's statements about his back, and set forth all examination findings, along with the complete rationale for all conclusions reached. If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. If the June 2012 VA examiner is unavailable, another qualified examiner should be asked to provide the opinion. At the discretion of the new VA examiner, a new examination may be conducted in order to obtain such an opinion, and then one should be scheduled. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claim. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2013). _________________________________________________ MARJORIE A. AUER 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).