Citation Nr: 1641602 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 10-49 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a peptic ulcer disability, claimed secondary to a back disability due to non-steroidal anti-inflammatory drugs (NSAIDS). (The issues of entitlement to an increased rating for ingrown toenails, right toes with surgery, and entitlement to service connection for right and left knee disabilities will be the subject of a separate Board decision). REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from July 1967 to July 1971. He also served as a member of the Oklahoma Air National Guard for periods from October 1972 to March 1993. During that time he had verified periods of active duty for training (ACDUTRA) and inactive duty training (ACDUTRA). These matters come to the Board ofVeterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan Puerto, Rico. The Veteran requested on his December 2010 substantive appeal (VA Form 9) that he be afforded a Board hearing, but his representative later informed VA by letter dated in October 2011 that the Veteran wished to withdraw his Board hearing request. See 38 C F R § 20 704(e). The Board remanded the claim in October 2012. As will be discussed below, the Board is not satisfied that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the claims must be remanded again to obtain adequate examinations that comply with the directives of the October 2012 remand. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, where VA provides the Veteran an examination in a service connection claim the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). In a statement dated in January 2009, the Veteran said that in late 1969 he was riding on a helicopter as a door gunner on a mission to pick up a Lieutenant Colonel. He said that about 30 miles outside of DaNang the helicopter took incoming fire and had to land hard which affected his back. Evidence from the Defense Personnel Records Information Retrieval System in September 2009 supports the Veteran's contention that he was involved in an aircraft crash in December 1969. Pursuant to the October 2012 Board remand, the Veteran was provided a VA examination to assist in determining whether his back condition is related to service. The January 2015 VA examiner did not consider the affirmative evidence of record showing that the Veteran injured his back in a helicopter crash during service, and that he sought treatment for back problems shortly after service separation. The cursory opinion merely stated that there is no evidence of a back condition in service. No rationale was provided, and none of the relevant evidence cited in the October 2012 Board remand was discussed. As the examination is not adequate, a new examination must be provided. The Veteran's main assertion with respect to his claim for service connection for a peptic ulcer disability is that it is secondary to medication (NSAIDS) he has been taking for his back disability. Thus, in light of the fact that his claim for service connection for a back disability is being remanded for additional development, the issue of service connection for a peptic ulcer disability, claimed as secondary to medication (NSAIDS) for his back disability, must be deferred since his back disability claim could significantly impact his peptic ulcer disability claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be afforded an appropriate VA examination to determine the etiology of his back disability. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The examiner should address whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's back disability had its onset in service, or is the result of disease or injury incurred or aggravated during service-to include his active duty service from 1967 to 1971, or during periods of ACDUTRA (roughly two week periods annually) in the National Guard from October 1972 to March 1993. The examiner should also include an opinion regarding the likelihood that any such back disability is the result of injury incurred or aggravated during periods of INACDUTRA in National Guard service from October 1972 to March 1993. Also, if other causes are more likely, those should be noted. The examiner is instructed to assume, for purposes of the examination, that the Veteran injured his back during a helicopter crash in 1969. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 3. Thereafter, the remanded claims should be readjudicated. If any benefit sought on appeal remains denied, the appellant should be provided with an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ H. SEESEL 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).