Citation Nr: 0003190 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 94-31 717 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for residuals of an injury to the back, claimed as arthritis, and residuals of spinal surgery. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from February 1953 to February 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1993 decision by the RO. This case was previously before the Board in April 1996 and September 1998, and was on both occasions remanded to the RO for further development. The case was most recently returned to the Board in October 1999. REMAND When the Board last remanded this case to the RO, the Board requested, among other things, that the veteran be examined for purposes of determining whether he has a current low back disability that can be attributed to military service. Inasmuch as there appeared to be a conflict between the diagnosis recorded in the report of a 1993 VA examination ("lumbosacral strain"), and the impression recorded in a contemporaneous radiographic report ("[d]iscogenic and degenerative changes"), the Board asked that the examiner identify each disability associated with the veteran's low back, and provide an etiological opinion as to each such disability. Then, after this and other development had been completed, the RO was to contact the veteran to determine if he still desired to have a Board hearing at the RO. Unfortunately, a review of the record reveals that the requested development has not been completed. Although the record shows that the veteran underwent a VA examination in May 1999, and the examining physician indicated that the veteran had degenerative changes of the lumbar spine, the examiner did not indicate whether the veteran suffered from lumbosacral strain and/or discogenic disease of the lumbar spine and, if so, whether those conditions could be attributed to military service. In addition, it does not appear that the RO has contacted the veteran since the time of the Board's September 1998 remand, for purposes of determining whether he wishes to have a Board hearing at the RO. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now required. 38 C.F.R. § 19.9 (1999). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should have the veteran examined for purposes of determining whether he has a current low back disability that can be attributed to military service. The examiner should review the claims folder (including the morning reports obtained from the service department, the testimony and written statements provided by the veteran as to in-service events, and a copy of this remand) before identifying each disability associated with the veteran's low back (including any noted scars) and offering an opinion as to the medical probabilities that each such disability is attributable to military service or event coincident therewith. For purposes of supplying the requested opinions, the examiner should presume that the veteran's testimony and written statements as to in-service events are credible insofar as they relate to matters which are observable by a layperson, and do not require medical training or expertise. The examiner should provide an opinion as to each of the following questions: a. Is chronic lumbosacral strain present and, if so, what are the medical probabilities that the condition is attributable to military service or event coincident with? b. Is discogenic disease of the lumbar spine present and, if so, what are the medical probabilities that the condition is attributable to military service or event coincident with? c. Is degenerative arthritis of the lumbar spine present and, if so, what are the medical probabilities that the condition is attributable to military service or event coincident with? A complete rationale for all opinions should be provided. In discussing the medical probabilities with regard to questions of etiology, the examiner should comment upon the current severity of the conditions in question, and the likelihood that the conditions had their onset more than 40 years ago (during the veteran's service), given what is medically known about the usual progress of the conditions in question. The examiner should also comment on the likelihood that any currently noted degenerative processes affecting the low back can be attributed to a systemic degenerative process, versus trauma in service. 2. After the above development has been completed, the RO should take adjudicatory action on the veteran's claim. If any benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. 3. The RO should then contact the veteran and ask him if he still desires to have a Board hearing at the RO. If he responds in the affirmative, or if no response is received, he should be scheduled for such a hearing. He should be notified of the date and time of the hearing in accordance with 38 C.F.R. § 20.704. After the veteran has been given an opportunity to respond to the SSOC, and questions relating to the request for a Board hearing have been resolved, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).