Citation Nr: 1635447 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 08-33 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a thoracolumbar spine disorder. 3. Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Larry D. Schuh, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from June 1979 to June 1983. This appeal to the Board of Veterans' Appeals (Board) is from a May 2007rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2011 and May 2012, the Board remanded the case. Hearings were held in March 2011 and October 2012 before Veterans Law Judges (VLJs) Chiappetta and Gallagher. In January 2013, the Veteran was asked if he desired another hearing before the third undersigned Board member. In February 2013, the Veteran responded, indicating that he waived his right to appear at an additional hearing. In December 2013, the Board denied the claims in a panel decision. In a Memorandum Decision dated in October 2015, the Court vacated and remanded the Board's decision denying service connection disorders of the neck, low back, and right hip. In June 2016, he was informed that one of the judges that previously presided over a hearing was no longer available to participate in a decision and he was again afforded an opportunity for another hearing, which he declined. See Correspondence received June 2016 and Hearing Request received July 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the October 2015 Memorandum Decision, the Court vacated the portion of the Board's December 2013 decision that denied service connection for disorders of the neck, thoracolumbar spine, and right hip, and remanded the matters for further action consistent with the decision. The Court found that there were deficiencies in VA examinations conducted pursuant an earlier Board remand in June 2011. Consequently, substantial compliance with the Board remand was not achieved, so the case must be remanded. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall v. West, 11. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should seek the Veteran's assistance in obtaining copies of any outstanding records of pertinent VA or private treatment. 2. After receipt of any additional record, the RO/AMC should then schedule the Veteran for a VA examination, to determine the nature and likely etiology of the Veteran's current disorder(s) manifested by chronic pain in his neck, low back and right hip. The examination must be conducted by a clinician other than Dr. Saltzgiver, since the Veteran reported having a prior unpleasant experience with this physician. The RO/AMC should make the claims file available to the examiner, who should review the entire claims file in conjunction with the examination. The examiner should indicate this fact in the examination report. The goal of the examination is twofold to obtain definitive diagnoses of any current disorders; and to obtain a medical opinion as to the likelihood that any diagnosed condition is related to service, including the November 1980 accident when the Veteran was hit by a motor vehicle while he was a pedestrian. In order to achieve this goal, the examiner should be asked to review the Veterans complete claims file, including service medical records, prior examination reports (dated April 2007, March 2008, November 2009, November 2010, and August 2011), the 6 medical statements from Dr. J. W. G. (dated January 2008 through April 2O10), and a copy of this remand. The examiner should note in his or her report that these records were reviewed. The examiner should provide a detailed review of the Veteran's history and current complaints pertaining to his claimed conditions. The examiner should perform all studies deemed appropriate and set forth the findings in detail in the examination report. Following the review of the record and examination of the Veteran, the examiner is asked to answer the following questions. (1) Does the Veteran have any other diagnosed disorder(s) involving his neck, low back and/or right hip? And if so, please identify the nature of the disorder and the affected body part. (2) For any disorder diagnosed, the examiner should provide a medical opinion as to the likely etiology and time of onset of such diagnosed conditions. (3) Specifically, the examiner should provide an opinion whether it is at least as likely as not (a 50% degree of probability or higher) that a diagnosed disorder had an onset during the Veteran's period of service or is due to any aspect of his period of service, including the November 1980 accident when he was hit by a motor vehicle while he was a pedestrian. The examiner should provide a rationale for any medical opinion expressed. In doing so, the examiner is asked to include comments on the findings contained medical statements/opinions from the previous five medical professionals of record and how their findings contributed his or her overall medical conclusion about the nature and etiology of the Veteran's claimed disorder(s). It is critical that the clinician provide the requested opinions and comment on the prior medical statements/opinions as instructed in the remand, since failure to comply with these requests will most likely result in another remand for a supplemental statement or opinion. Thereafter, the RO/AMC should then re-adjudicate the claims. If any benefit sought on appeal remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).