Citation Nr: 1615637 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 13-03 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from August 1987 to July 2009. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2015, the Board, in part, denied the Veteran's claims, which he appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2016, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Remand (JMR). It is noted that the Veteran withdrew his appeal of the claims the Board had remanded in the May 2015 decision, namely service connection for bilateral foot pain, a left knee condition, and a bilateral hand condition. As such, those issues are no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the claim for service connection for a lumbar spine disorder, the Veteran asserted that his low back pain began in June 2000 due to an injury after carrying equipment. Service treatment records show that at his March 2009 separation examination after more than 20 years of active mil service, the Veteran reported having experienced chronic back pain since 2000. However, a VA examination in 2009 found no pathology upon which to render a diagnosis of a back disability and indicated that x-rays of the lumbar spine were within normal limits. Several years later, in November 2012, x-rays of the lumbar spine showed degenerative changes. Regarding the claim for service connection for sinusitis, the Veteran asserted that his sinusitis began in November 2000. STRs show that he was diagnosed with sinusitis in December 2000, February 2001, and March 2001. He reported having sinus problems in September 2004 and March 2009. After his separation from service, medical records show he complained of sinus problems in October 2011. Per the JMR, medical opinions are necessary to adjudicate the service connection claims. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination. The examiner should diagnose any current lumbar disorder, and then should provide an opinion as to whether is it at least as likely as not (50 percent or greater) that any current lumbar disorder either began during, was otherwise caused by the Veteran's military service. Why or why not. The examiner is requested to review the Joint Motion for Remand (JMR) (dated February 22, 2016 in VBMS and in a document labeled CAVC Decision) which explains the problems the Court had with the medical evidence of record. With regard to the Veteran's back, if no disability is found, the examiner should explain the findings of "chronic low back pain due to muscle strain" at a November 2011 VA Persian Gulf War examination; the impression of degenerative changes in the Veteran's lumbar spine on x-rays in November 2012; and the VA treatment records from June 2012 which showed the assessment of "chronic low back pain." 2. Schedule the Veteran for a VA examination of his sinusitis. The examiner should determine whether the Veteran has sinusitis, and then should provide an opinion as to whether is it at least as likely as not (50 percent or greater) sinusitis either began during, was otherwise caused by the Veteran's military service. Why or why not. If sinusitis is not found to be present, the examiner should explain the finding of "Unspecified sinusitis (chronic) (ICD-9-CM 473.9)" in an October 2011 VA treatment record. If sinusitis is not found, the examiner should determine whether the Veteran's reported symptomatology is consistent with a known clinical diagnosis, or whether it should be considered an undiagnosed illness based on the Veteran's service in the Persian Gulf region. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ MATTHEW W. BLACKWELDER 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) (2015).