Citation Nr: 1752333 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 06-27 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to August 1974. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a May 2016 decision, the Board denied the Veteran's claim for entitlement to service connection for a low back disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which in a February 2017 Order and pursuant to a Joint Motion for Remand (JMR), vacated the May 2016 denial and remanded the case to the Board. Specifically, the JMR found that the Board erred when it found that there had been substantial compliance with its September 2014 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The September 2014 Board remand requested a medical opinion regarding whether the Veteran's thoracolumbar scoliosis was a congenital disease or defect and "for any back disability other than thoracolumbar scoliosis diagnosed on examination, the examiner should opine as to whether it is at least as likely as not that the low back disability is related to service." In response to the remand, the examiner opined that there was no evidence of a congenital disease or defect and stated, "I am unable to define a nexus between any present back complaint/findings and any incident/occurrence in the military." The parties found that the February 2015 VA examination report was inadequate for adjudication purposes because the examiner did not provide a detailed rationale for the opinion related to the Veteran's back disabilities, other than scoliosis. As required by the Court's Order, the case must be remanded for a clarification opinion from the February 2015 VA examiner. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the February 2015 VA examiner (or a suitable substitute). The electronic claims folder and a copy of this remand should be forwarded to the examiner and the examiner should indicate in the addendum report that the claims file was reviewed. After the record review, the VA examiner should offer his/her opinion with supporting rationale as to the following: Whether it is at least as likely as not (50 percent probability or greater) that any current diagnosed back disability, other than thoracolumbar scoliosis, began in or is related to active duty service. A complete rationale for the opinion must be provided. Although the Board relied on the February 2015 opinion in its May 2016 denial, this matter was appealed to the United States Court of Appeals for Veterans Claims which found that the February 2015 examination report was inadequate. The joint motion for remand found that the examiner "did not provide a detailed rationale as required, only providing a conclusory opinion by stating: 'I am unable to define nexus between any present back complaints/findings and any incident/occurrence in the military.'" The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned 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 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). _________________________________________________ C. TRUEBA 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).