Citation Nr: 1751143 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-27 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a cervical and lumbar disorder. REPRESENTATION Appellant represented by: John Berry, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran had active duty service for training from April 1983 to August 1983, and served on active duty from November 1985 to February 1988. The case originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied reopening the claim for lack of new and material evidence. After review, in a June 2014 statement of the case, the RO agreed that new and material evidence had been received, reopened the case, but denied the underlying claim of service connection for a cervical and lumbar disorder. In April 2016 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the electronic claims file. In a November 2016 Board decision, the Board agreed with the RO that new and material evidence had been submitted to reopen the claim. The Board then denied the underlying claim on the merits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which granted a partial Joint Motion for Remand (JMR) in August 2017. The JMR vacated the Board's denial of service connection for a cervical and lumbar disorder based on inadequate reasons and bases for lack of consideration of evidence viewed as favorable to the Veteran. The Court remanded the claim to the Board for action consistent with the terms of the JMR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 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 Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. The parties to the JMR indicated that the previous VA medical opinion in April 2014 did not adequately analyze evidence favorable to the Veteran, specifically the March 1993 radiology report showing "perhaps minimal narrowing of the L1 disc." The Veteran was last afforded a VA medical examination on April 7, 2014 while he was incarcerated. As the examination took place in the prison, the examiner did not have access to the Veteran's records such as radiology images to make adequate analysis of service connection status for the Veteran's claimed back conditions. Because of that, a VA service-connection opinion by a different medical examiner was provided the next day, April 8, 2014, but that examiner did not have access to the Veteran, only to his records. Subsequently, in a statement dated July 2014, the Veteran claimed that during the VA examination at the prison, he requested to return to his cell to retrieve medical records so that the VA examiner could review them during the examination, but was not allowed to do so. According to prison records, the Veteran was released in 2015. With respect to the issues recorded above, and in response to the suggestion in the JMR that a new VA opinion be obtained if needed to analyze the connection between the in-service radiology report and the Veteran's current back condition, the Board concludes that the Veteran should be afforded a new VA examination. Tucker v. West, 11 Vet. App. 369, 374 (1998); and see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). 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. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Thereafter, schedule the Veteran for a VA examination of his spine, by an appropriate medical professional. All appropriate tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with 38 C.F.R. § 4.59 as interpreted in Correia. The examiner should report ranges of motion on both (a) active motion and (b) passive motion and in both (c) weight-bearing and (d) non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. For any spinal diagnosis made, the examiner should indicate: (a) whether it is at least as likely as not (i.e. 50 percent probability) that a lumbar and/or cervical back disorder was incurred in or related to the Veteran's time in active service, to include the Veteran's claim that, during active service, a military police officer choked him and threw him to the ground, causing back and/or neck injuries. (b) the correlation between intervening events reported by the Veteran and/or shown in the medical evidence, including, but not limited to: (i) Motor vehicle accident, 1999 (ii) construction incident, 2004 (iii) hit by a vehicle while riding a bicycle The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of back disability symptoms or conditions in the medical record, to specifically include the March 1993 radiology report showing 'perhaps minimal narrowing of the L1 disc," with the opinion that the examiner ultimately puts forth. The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 2. After undertaking any necessary additional development, readjudicate the back disability issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise 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). _________________________________________________ DAVID L. WIGHT 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) (2017).