Citation Nr: 1803428 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-27 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for retrolisthesis of L5/S1 with disc bulge and mild foraminal stenosis. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In his October 2011 substantive appeal (via a VA Form 9), the Veteran requested a Board hearing at the RO. In a November 2011 statement, he withdrew that request, but instead asked for a Decision Review Officer (DRO) hearing. Such hearing was held in December 2012. A transcript of that hearing is of record. The claim was previously remanded by the Board in July 2017 for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds additional development must be undertaken prior to adjudication of the Veteran's claim for compensation under the provisions of 38 U.S.C. §1151 for retrolisthesis of L5/S1 with disc bulge and mild foraminal stenosis. A remand by the Board confers upon the appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure [sic] compliance." Id. The Veteran contends that his current low back disability was worsened as a result of an injury sustained while participating in a compensated work therapy (CWT) program in 2008. Specifically, he maintains that he injured his back on two occasions-while "moving some furniture" and later while operating an auger, used to drill holes into the ground, "when the auger caught something in the ground and twisted his back." See December 2012 Hearing. The Veteran has also submitted a statement signed by his former co-worker and supervisor, averring that he was "injured while working a gasoline post hole digger at . . . VA center while on the CWT program." See February 2009 Statement. The evidence reflects that the Veteran worked at an "engineering worksite" as part of the CWT program at the Indianapolis VA Medical Center from March to October 2008. See April 2008 VA treatment note; January 2009 VA Vocational rehabilitation discharge note. As noted above, the Board remanded this case in January 2017 for further development. The January remand requested that the RO obtain the Veteran's CWT program records and associate them with the Veteran's claims folder. The Board then requested the RO to schedule the Veteran for a VA examination to determine whether his claimed low back disability was caused or aggravated by the reported back injuries sustained while working in the CWT program in May and June 2008. Specifically, the Board wanted the examiner to express an opinion concerning whether the Veteran has any additional low back disability after the May and June 2008 injuries and whether or not any disability was caused or worsened by the May and June 2008 injuries. The Veteran's record indicates that he was a "No show" to his VA examination on September 1, 2017. As a result, the September 2017 SSOC was decided on the evidence of record. In a December 2017 written brief, the Veteran's representative argued that the Veteran did not receive notice of the September 2017 examination. Although the Veteran was scheduled for a VA examination in September 2017, there are no documents in the Veteran's file that indicate that the Veteran received notice of his upcoming VA examination. For example, there is no notice of a scheduling examination letter of record or a Report of General Information memorializing any contacts or attempted contacts with the Veteran of record. Thus, the Board cannot render a finding that the Veteran failed to report for a VA examination. Accordingly, the Board finds that this case should be remanded so that the Veteran is given proper notice and an opportunity to appear for a VA examination so that a medical opinion on whether or not his low back disability was caused or aggravated by injuries sustained while working in the CWT program can be provided. Accordingly, the case is REMANDED for the following action: 1. Reschedule an appropriate VA examination to determine whether the reported injuries while participating in the CWT program caused or aggravated the Veteran's low back disability. The claims file should be made available to and be reviewed by the examiner. The examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has any additional low back disability after the May and June 2008 injuries. The physician should specifically list each additional disability. (B) For each additional disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the May and/or June 2008 injury caused or worsened such additional disability. In rendering his or her opinion, the examiner is asked to consider all pertinent medical evidence, including but not limited to the following: 1) the May 2008 VA treatment note in which the treating physician noted the Veteran's report that he "injur[ed] [his] back yesterday after moving furniture" and his complaint of "left side [low back pain] that radiate[d] down outside of left leg" and numbness in the "4th and 5th toes"; 2) the May 30, 2008 VA treatment note in which the Veteran reported that he was "having worse back pain with numbness that r[an] down his left leg and to the ball of his foot"; 3) the June 2008 VA Emergency department triage note in which the Veteran complained of "acute . . . chronic [low back pain] following misstep this Monday past" and 4) September 2008 VA treatment note containing a complaint of "shooting pains down lateral aspect of [left lower extremity] into plantar aspect of left foot" now involving "lateral 4 toes" and;5) the February 2009 VA discharge note documenting that the Veteran underwent left L5-S1 transforaminal lumbar interbody fusion. The examiner should provide a rationale for each opinion. The examiner is advised that the Veteran is competent to report a low back injury, his symptoms and history; and such reports must be specifically acknowledged and considered in formulating any opinions. 2. If the Veteran fails to report to the rescheduled VA examination, all documents that pertain to notice of the examination that were sent to the Veteran should be associated with the Veteran's claims file. 3. After undertaking the development above, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).