Citation Nr: 1512066 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 05-38 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to September 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which denied entitlement to the benefit currently sought on appeal. In March 2014, the Board issued a decision denying service connection for a low back disability. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2015 Order, pursuant to a Joint Motion for Remand (Joint Motion) by the parties, the Court vacated the March 2014 decision of the Board only with respect to the Veteran's entitlement to service connection for a low back disability and remanded the matter for further proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Joint Motion established that the March 2014 Board decision was erroneous in its finding that theories of service connection pertaining to chronicity and continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) do not apply to the Veteran's claim. Accordingly, the Joint Motion that was granted by the Court directed the Board is to evaluate the Veteran's credible assertion of back pain since service under the theory of continuity of symptomatology and to determine whether a new medical opinion is needed to address whether continuous pain since service, as reported by the Veteran, is related to his arthritis. In considering continuity of symptomatology as a theory of entitlement in this case, the Board has determined, as an initial matter, that an addendum medical opinion is needed as to the etiology of the Veteran's current low back disability. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who conducted the September 2010 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The claims file, including a copy of this REMAND, must be made available to the examiner for review in connection with the addendum opinion The examiner is requested to review the entire claims folder in order to render an opinion as to whether the Veteran's back condition at least as likely as not (a 50 percent or greater probability) began during, or is related to, his active service. The examiner's attention is directed in particular to the in-service diagnosis of a muscle spasm and the Veteran's complaints of, and treatment for, a back disorder following service. In offering any opinion, the examiner is directed to assume that the Veteran has experienced a continuity of symptomatology since leaving active service. The Veteran is both competent and credible as to his statements concerning the onset and continuity of symptoms. The rationale for all opinions offered should be provided, and the explanation should address any contractions in the evidence of record. 2. After completing the above, and any other development deemed necessary, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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 be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).