Citation Nr: 1731928	
Decision Date: 08/08/17    Archive Date: 08/16/17

DOCKET NO.  12-04 290	)	DATE
	)


On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Veteran represented by:  Timothy R. Franklin, Attorney


ATTORNEY FOR THE BOARD

S. J. Sico, Associate Counsel







INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1964 through December 1967. 

This matter comes to the Board of Veterans' Appeals (Board) on remand from a June 2016 Order of the United States Court of Appeals for Veterans Claims (Court).  The Court set aside the Board's decision of November 2014 where entitlement to service connection for a low back disorder was denied.  The matter was originally before the Board on appeal from a March 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.  

The issue of entitlement to service connection for a low back disorder is REMANDED to the AOJ.   VA will notify the Veteran if further action is required.


REMAND

The Court has determined that the November 2011 VA examination was inadequate.  That opinion indicated, in effect, that it is unlikely that the Veteran's low back disorder is related to service.  The Board relied on the aforesaid examination and denied service connection, and the Veteran appealed to the Court.  Thereafter, the Court remanded the matter to the Board after finding that the opinion was inadequate.  In essence the Court found inasmuch as the report was conclusory, it failed to explain the rationale behind the opinion.  A new examination and opinion based on full review of the record and supported by stated rationale is needed to fairly resolve the Veteran's claims.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any additional relevant outstanding records he wants VA to consider, if any, in connection with this appeal.  In this regard, confirmation should be sought as to whether all available records have been obtained from Dr. Murphy and any medical group with which he was associated.  Identified additional records should be sought.  

2.  After the foregoing development has been completed limited to the extent possible, VA is to arrange to have the Veteran scheduled for a VA back examination.  The entire claims file should be provided to the examiner for review.  The report of the examination should include a discussion of the Veteran's documented history and assertions.  

The examiner should clearly identify all current disabilities of the back and render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., that is a 50 percent or greater probability) that any current disability is the result of disease or injury incurred in or aggravated by service, including the back complaints noted therein.

The examiner should set forth all examination findings, along with a full and complete rationale for the conclusions reached in the report, acknowledging the Veteran's documented history and his assertions.  Consistent with the Court's Memorandum Decision, the examiner should particularly consider the records from Dr. Murphy dated 1990 to 2002.  

	3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative are to be notified and issued a supplemental statement of the case.  An appropriate period of time should be allowed for a response, and the matter is to be returned to the Board for appellate review.

The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations and the Court Order discussed above.

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).



_________________________________________________
MICHAEL KILCOYNE
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).