Citation Nr: 1751723 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claim was subsequently remanded by the Board in July 2015 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's claim. In making this determination, the Board is cognizant that the Veteran's claim was the subject of a prior remand, in July 2015. At that time, the Board found that a November 2011 VA examination was inadequate for its failure to fully assess the Veteran's pertinent medical history and to provide a rationale in support of the provided nexus opinion. See July 2015 remand. As such, the Veteran was provided with a new VA examination in August 2015. However, the Board finds that the August 2015 examination repeats the same errors as those found in the November 2011 opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To that end, the August 2015 examiner opined that the Veteran's current disability was not caused by the back pain diagnosed in service. By way of rationale, the examiner noted that the Veteran's separation examination report reflected no recurrent back pain, and instead that the Veteran's recurrent back pain appeared in 2009 following a motor vehicle accident. Thus, the examiner concluded that the "opinion and rationale are the same today as in 2010." This rationale is deficient in many ways. First, the examiner cites to the Veteran's separation examination report, but fails to consider the Veteran's in-service treatment history for lower back pain. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Further, the evidence of record establishes a post-service history of recurrent back pain prior to the Veteran's 2009 accident, which the examiner fails to address. Finally, the examiner does not account for the full scope of the Veteran's diagnosed back disabilities and their potential impact on one another, as directed in the July 2015 remand. See July 2015 remand. For these reasons, the Board finds that an additional remand is now warranted such that an adequate VA examination may be obtained. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination, with an examiner other than the November 2011/August 2015 examiner, to assess the current nature and etiology of the claimed lower back disability. The claims file must be made available to and reviewed by the examiner, and the examiner should clearly indicate that such file review has been undertaken. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should elicit a complete history from the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must indicate the following: a. Identify all lower back disabilities that the Veteran has been diagnosed with during the pendency of this claim; b. For each diagnosed disability, opine whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service? In doing so, the examiner must explicitly address the following factors: the Veteran's in-service history of treatment for lower back pain; the Veteran's history of post-service lower back pain and 2009 motor vehicle accident; the nature and onset of any current disability; and the impact of any former back conditions or injuries on the current disability. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be so provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. Readjudicate the claim on appeal. If the benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond. Then, return the appeal to the Board. The Veteran 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 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). _________________________________________________ LANA K. JENG 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).