Citation Nr: 1514543 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 06-17 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In October 2006, the Veteran was afforded a personal hearing before a hearing officer at the RO and in September 2008, the Veteran was afforded a personal hearing before the undersigned. Transcripts of the hearings are of record. In February 2009, the Board reopened the claim of service connection for a low back disability and remanded the matter for additional development and due process concerns. In a July 2010 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2011, the Court granted a Joint Motion for Remand (JMR) and remanded the matter to the Board for action consistent with the Court order. In September 2011, the Board issued a decision denying the claim currently on appeal. This case was before the Board in November 2013 when it was referred to the Veterans Health Administration (VHA) for a medical expert opinion. An opinion was obtained and the Veteran and his representative were sent a copy of the medical expert opinion in January 2014. Thereafter, the Board granted a Motion to Vacate the September 2011 Board decision submitted by the Veteran's representative. Then the Board denied the issue in a March 2014 decision. The Veteran appealed the decision to the Court. In October 2014, the Court granted a JMR and remanded the matter to the Board for action consistent with the Court order. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The parties to the JMR agreed that the December 2013 expert opinion is inadequate. The parties agreed that on remand, the Board will either have an addendum to the 2013 VA examination prepared clarifying the examiner's opinion, or a new examination with a medical opinion, as to the question of aggravation. The parties to the JMR agreed that the inadequacy stems from the VA medical opinion's author's inadequate rationale regarding the question of aggravation. It was stated that in the December 2013, VA opinion the medical expert opined that, "[i]t is at least as likely as not that his current back condition is either directly due to an on-the-job injury in 1977 or aggravated beyond natural progression by the on-the-job injury in 1977." The parties agreed that the rationale of the expert explained why the Veteran's service did not cause his current back disability, noting a 1977 injury as well as a lack of objective evidence showing symptomatology subsequent to service and prior to a 1977 injury. The parties to the JMR found that the rationale is inadequate for explaining why the 1977 injury did not aggravate the Veteran's back disability. In making this finding, the parties quoted the medical expert's statement of: Even if one were to argue that he had symptoms from the military prior to the 1977 injury the objective evidence shows that the workplace injury would have aggravated any prior symptoms beyond normal progression. The parties to the JMR found that this statement acts as a contradiction to the opinion, indicating that the 1977 injury would have, and could have, caused an aggravation of the Veteran's in-service event. The JMR states that the point that the parties took away from this language was that, but for an objective showing of some kind of back symptomatology between service and the 1977 injury, that the medical expert would have found Veteran's disability had been aggravated. But, the medical expert did not explain how the lack of symptomatology between service and the 1977 injury would be indicative of a lack of aggravation of a prior, apparently conceded injury in-service, particularly as the medical expert found that, There is clear documentation that he had a workplace injury in 1977 that significantly increase his symptoms and caused disability to the severity that he could no long find gainful employment. This is clearly documented in the Social Security disability decision from March 8, 1989. The abundance of objective evidence showed that since 1977 his back symptoms have been significant and increasing. The parties to the JMR agreed that given the ambiguity and lack of clarity of the rationale, vacatur and remand of the Board's decision is required in order to acquire an addendum, or new opinion, to clarify whether the Veteran's in-service incident was aggravated by the post service 1977 injury. As such, the Board is remanding the claim for the Veteran to be afforded another VA medical examination regarding the etiology of his low back disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). It is noted that a statement dated in September 2012 indicates that the Veteran moved to Ohio. In addition, a subsequent claim for individual unemployability indicated treatment at the Youngstown VA Clinic. Since the claims file is being returned it should be updated to include VA treatment records compiled since June 2009, to include records from Phoenix, Arizona, and Ohio. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the names and addresses of all medical care providers who treated the Veteran for back complaints since June 2009. After securing the necessary release, obtain these records, as well as any VA treatment records dated from June 2009, from Phoenix, Arizona, and Ohio. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the etiology of any low back disability found to be present. The claims file and copies of all pertinent records must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran incurred a low back disability in service? Please comment upon whether the Veteran's post service 1977 work place injury aggravated any prior symptoms beyond normal progression. In answering these questions, assume that the Veteran received treatment for a back problem after service, in 1973, and before the 1977 work place injury. Although the records are unavailable, comment on any significance of treatment of a back problem beginning in 1973, after separation from service. Please comment on the mechanics of the Veteran's injuries and complaints in service in comparison with the Veteran's workplace injury. (b) If the answer to question (a) is yes, please identify the low back disability related to the Veteran's active service, as opposed to that related to the 1977 workplace injury. If such a distinction cannot be made, please indicate why that is so. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran an opportunity to respond. 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 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 2014). _________________________________________________ M. E. LARKIN 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).