Citation Nr: 1504824 Decision Date: 02/02/15 Archive Date: 02/09/15 DOCKET NO. 06-23 446 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder with osteoporosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to July 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was most recently before the Board in June 2013. At that time, the Board denied service connection for a lumbar spine disorder with osteoporosis. The Veteran appealed the June 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2014, the Court issued a Memorandum Decision vacating the Board's June 2013 decision. The Court reversed the Board's determination that a prior June 2012 Board remand had been substantially complied with and remanded the case for further development and adjudication. Hence, this matter is once again before the Board for appellate consideration. The appeal is REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. REMAND In light of points raised in the August 2014 Memorandum Decision, further action in connection with the claim is warranted. Specifically, the Memorandum Decision instructed that a new VA medical opinion that complies with the June 2012 remand directives be obtained. In its August 2014 Memorandum Decision, the Court concluded that the Board's June 2013 decision erred in finding that an August 2012 VA examination substantially complied with the June 2012 Board remand order. The Court stated that "although the [August 2012 VA examiner] mentioned that he considered the favorable evidence, he undertook no effort to explain his negative determinations." The favorable evidence referred to is the private medical opinion by the Veteran's physician dated in February 2005, two buddy statements regarding the onset of the Veteran's back pain in service and the Veteran's statements regarding the continuity of symptoms since service. By vacating the Board's June 2013 decision, and requiring VA to obtain a medical opinion that complies with the June 2012 Board remand, the Court requires the Board to return the Veteran's claims file to the VA examiner who conducted the February 2010 VA spine examination for an addendum. In the June 2012 Board remand, the Board noted that the June 2011 medical addendum to the February 2010 VA examination was inadequate. In that remand, the Board stated that "although listing the February 200[5] private medical opinion as evidence, [the February 2010 examiner] failed to discuss it in rendering her opinion and explain why such opinion was not persuasive to her. Furthermore, it is unclear whether she actual considered the Veteran's contentions of continuity of symptomatology in rendering her opinion, especially in light of the Veteran's report of an onset in service and the two buddy statements submitting supporting his report." As such, an addendum to the February 2010 VA examination is once again necessary. Of note, as discussed in the previous Board remands, the Board finds that the evidence is sufficient to warrant application of the combat presumption to the 1967 incident in which the Veteran was forced to eject from his airplane during a combat mission. See 38 U.S.C.A. § 1154(b) (West 2014). In addition, the Board finds that the Veteran incurred an injury to his low back in the 1967 ejection incident and any further medical opinions and adjudications of the Veteran's claim should also presume the incurrence of such an in-service injury. Accordingly, the case is REMANDED for the following actions: 1. Return the claims file to the February 2010 VA examiner, if available, for an addendum opinion. If the original examiner is not available, the file should be reviewed by another examiner of similar qualifications to obtain the opinion. If an additional examination is deemed necessary by the examiner to respond to the question presented, one should be authorized. The examiner should be advised that it has been established that the Veteran had an injury to the low back in the July 1967 in-service combat incident in which the Veteran ejected from a burning aircraft. After review of the entire record, the examiner is asked to specifically address the following question: Is it at least as likely as not (50 percent or greater probability) that each of the Veteran's currently diagnosed disorders of the lumbar spine, degenerative disc disease of the lumbar spine and spondylolisthesis, is related to the presumed low back injury incurred during the in-service ejection incident in 1967. In rendering the opinion, and pursuant to the Court's August 2014 Memorandum Decision, the examiner must take into consideration and discuss:(in the positive or negative): (1) the Veteran's report of an onset of low back pain in service, (2) the two buddy statements of record supporting the Veteran's report of an onset of low back pain in service, and (3) the Veteran's report of having continuous symptoms of low back pain since the 1967 ejection incident in service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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 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 2014). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2014).