Citation Nr: 1808240 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-20 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1995 to July 1997 and from May 2005 to October 2006 with additional periods of inactive service in the U.S. Army Reserves. Among other awards, the Veteran received the Combat Action Badge and Iraq Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before the undersigned Acting Veterans Law Judge at a June 2013 videoconference hearing. A transcript of the hearing is of record. In October 2014, the Board, in pertinent part, remanded the issue on appeal for additional development. In a November 2016 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Court vacated the Board's November 2016 decision and remanded the issue of entitlement to service connection for a low back disability, pursuant to an August 2017 Joint Motion for Remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the August 2017 Joint Motion for Remand, the parties agreed that remand of the Veteran's claim was required because the Board erred in the November 2016 decision that denied the Veteran's claim for entitlement to service connection for a low back disability when it failed to obtain an adequate medical opinion. See 38 C.F.R. § 4.2. The parties determined that the April 2015 VA examination, relied upon in the Board's denial, was inadequate for rating purposes. Specifically, the parties indicated that the April 2015 VA examiner's opinion was ambiguous and lacked an adequate rationale because "on the one hand, the examiner acknowledged a diagnosis of lumbosacral sprain since 2010, but on the other hand found no objective evidence on examination to render a diagnosis at that time." The parties further agreed that the cursory nexus opinion lacked sufficient rationale finding the Veteran's symptoms "subjective only" with "no objective evidence of a chronic condition" and a "nexus had not been established." The parties agreed that vacatur and remand was required. The parties instructed that, upon remand, the Veteran should be afforded a new VA medical opinion reconciling whether the Veteran has a lumbar spine diagnosis or had such a diagnosis during any part of the appellate time frame, and, if so, whether any diagnosed condition can be related to his military service in light of his combat service and description of symptoms since service. Based on the above stated facts, a medical opinion is warranted to determine whether the Veteran's low back disability is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional, relevant treatment he has received for his back disability that is not of record. Make efforts to obtain any relevant records identified by the Veteran. 2. Thereafter, obtain a medical opinion to ascertain the nature and etiology of the Veteran's low back disability. All necessary tests should be conducted. A medical examination should be provided if deemed necessary by the clinician who provides the medical opinion. The examiner should consider and discuss the April 2015 VA examination, specifically reconciling whether the Veteran has a lumbar spine diagnosis or had such a diagnosis since 2010. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any low back disability was manifested during service, was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active duty service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 2. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period within which to respond thereto. 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. §§ 5109B, 7112 (2012). _________________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).