Citation Nr: 1719643	
Decision Date: 06/02/17    Archive Date: 06/14/17

DOCKET NO.  09-04 285	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a low back disability. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Zobrist, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from August 1985 to May 1988, and had additional Army National Guard service.  This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court).  It was originally before the Board on appeal from an October 2007 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO).  In October 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. 

This matter was previously before the Board in March 2012, when it was remanded for additional development, and August 2014, when service connection was denied.  The Veteran appealed the August 2014 Board decision to the Court, resulting in an October 2015 Memorandum Decision vacating the August 2014 Board decision with respect to a low back disability and remanding the matter for readjudication consistent with instructions outlined in the Memorandum Decision.  (The August 2014 Board decision also denied service connection for right and left ankle disabilities.  The Veteran did not raise argument on those matters to the Court, which found those matters abandoned on appeal.)

In May 2016, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA), and the Veteran was advised of the findings.  In April 2017, he submitted additional evidence and declined to waive RO jurisdiction.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action on his part is required.


REMAND

In April 2017, the Veteran submitted additional evidence (a private nexus opinion) and declined to waive AOJ initial consideration; consequently the record must be returned to the AOJ for its initial review and readjudication of the claim.  See 38 C.F.R. §§ 20.903, 20.1304.  The Board is well aware that this matter has been previously remanded by the Court and the Board.  However, the Veteran is entitled to the initial AOJ review and has declined to waive such privilege.

Accordingly, the case is REMANDED for the following:

The RO should review the record (including the April 2017 private nexus opinion), arrange for any further development indicated, and readjudicate the claim.  If it remains denied, the RO should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and return the case to the Board.  

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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
George R. Senyk
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) (2016).