Citation Nr: 18131247 Decision Date: 08/31/18 Archive Date: 08/31/18 DOCKET NO. 11-08 194 DATE: August 31, 2018 REMANDED Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to October 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at an April 2016 videoconference hearing before the undersigned. A copy of the transcript is of record. In July 2016, the case was remanded by the Board for further development. In May 2017, the Board denied entitlement to service connection for a back disorder. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in November 2017 the Court granted a Joint Motion to Remand vacating the Board’s May 2017 decision. Pursuant to the November 2017 Court Order, the Board now remands the claim for additional development. The parties to the November 2017 Joint Motion agreed that the Board erred in its May 2017 decision when it relied upon a February 2008 and November 2010 VA examinations. Accordingly, further development to include a new VA examination is in order. Additionally, in July 2018, the Veteran submitted an opinion from a board certified orthopedic surgeon. Given that a new VA examination is in order the July 2018 opinion must be considered and addressed by the examiner. Therefore, this case is REMANDED for the following action: 1. Contact the Veteran and identify any outstanding records of pertinent medical treatment from VA or private health care providers beyond the July 2018 orthopedic surgeon evaluation. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter schedule the Veteran for a VA examination by a board certified orthopedic surgeon to evaluate the nature and etiology of any diagnosed lumbar disorder to include lumbar degenerative disc disease with bilateral radiculopathy. The Veteran’s VBMS and Virtual VA/Legacy files, as well as a copy of this remand must be made available to the board certified orthopedic surgeon for review, and that examiner must specifically acknowledge receipt and review of these materials in any report that is generated. After review of the claims file to include the July 2018 private opinion, the board certified orthopedic surgeon is to: Opine whether it is at least as likely as not (50 percent probability or greater) that any lumbar disorder diagnosed at any time since 2008, to specifically include lumbar degenerative disc disease with bilateral lower extremity radiculopathy, had its onset during active service or is otherwise related to it. a. The board certified orthopedic surgeon must consider and address in his or her opinion service treatment records from April and May 1963 which note a history of low back pain since July 1962. b. The board certified orthopedic surgeon must consider and address in his or her opinion all evidence of congenital spina bifida condition and any relationship it may have to the Veteran’s current back problems. c. The board certified orthopedic surgeon must consider and address in his or her opinion the July 1962 report of an in-service fall and what relationship that injury, if any, may have to the Veteran’s current back problems. d. The board certified orthopedic surgeon must address whether any of the reported in-service events either caused or aggravated the Veteran’s current back problems. e. The board certified orthopedic surgeon must specifically consider and address the July 2018 medical opinion offered by Dr. V.F. If the board certified orthopedic surgeon disagrees with Dr. V.F. a full and complete rationale must be provided in writing. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel
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