Citation Nr: 0814191 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-27 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for degenerative changes L4-5 and L5-S1 (claimed as lower back). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from April 1971 to January 1973 with additional service in the reserves from December 1982 to December 1985. This case initially comes before the Board of Veterans' Appeals (Board) on appeal of a February 2005 rating decision rendered by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified before the undersigned Veterans Law Judge in January 2008. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Under 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (B) Establishes that the veteran suffered an event, injury or disease in service; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. For the following reasons, the Board finds that the instant matter should be remanded for a VA medical examination pursuant to 38 C.F.R. § 3.159(c)(4). The veteran has alleged that he is entitled to service connection for degenerative changes L4-5 and L5-S1 (claimed as lower back). In order for a claim for service connection degenerative changes L4-5 and L5-S1 (claimed as lower back) to be successful there must be evidence of both a service- connected disease or injury and a present disability which is attributable to such disease or injury. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In a pre-induction examination, the veteran reported back trouble. During service, in May 1972, the veteran reported unusual movement during baseball practice which caused him to twist his lower back. It was noted that the practice was during off time recreational hours. A diagnosis of low back strain was given. Three days after the back injury, the veteran was seen again for severe pain and movement. In a March 1997 medical check list, the veteran listed lower back symptoms but only listed a car accident when directed to list any prior injuries or accidents. Post service medical records show that in December 1997 the veteran reported continued pain in his low back and right leg. An assessment of degenerative disc disease at L5-S1 was given at that time. Private medical records dated from 2000 to 2003 show that the veteran continued to complain of low back pain. In a July 2000 orthopedic report, which covered the veteran's medical history from November 1987 to May 2000, it was noted that the veteran was in car accident and experienced subsequent back symptoms. In a February 2002 orthopedic report, it was noted that the veteran sustained injuries on a continuous basis from April 1999 through April 2000 while performing his work related duties as a maintenance person. The duties included heavy lifting, bending, twisting, pushing, pulling and squatting. The veteran was diagnosed with cervical spine strain and lumbosacral spine strain with large disc bulges, per the ct myelogram at that time. In a July 2003 medical check list, the veteran listed lower back symptoms and again noted a car accident when directed to list any prior injuries or accidents. A July 2003 MRI of the back revealed a disc herniation that was about 7 mm at L5-S1. In an October 2003 claim for disability insurance benefits, a diagnosis of degenerative disc disease lower spine and right knee was listed. The veteran testified during his hearing that his back injury occurred while on stand down during a riot in service. The veteran testified that someone got hold of a football and it was thrown at him. According to the veteran, he caught the football without giving much thought and then realized five or six guys were approaching him. The veteran said that he was hit. The veteran maintained that he was treated for this disability for about three months. Although the veteran has been diagnosed with degenerative disc disease lower spine, the veteran has not been afforded a VA compensation and pension examination to determine if there is a link between his disability and service. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, this issue is remanded for a VA examination to determine if there is a link between the veteran's degenerative disc disease lower spine and service. The Board notes that during the veteran's hearing he indicated that he was receiving disability benefits from the Social Security Administration (SSA) and Workers' Compensation. The Board also notes that the veteran has identified treatment at Palm Desert VA Community Based Outpatient Clinic and the Loma Linda (Jerry Pettis) VA Medical Center. There are no records from SSA, Workers' Compensation, or the Palm Desert and Loma Linda VA facilities. Therefore, on remand these records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded appropriate VA examinations to ascertain whether his degenerative disc disease lower spine is attributable to service. The examiner should state for the record whether any currently shown low back disability is likely, as likely as not, or not likely related to service. If there is no relationship to service, that fact must be noted in the report. The claims folder should be made available to the examiner for review. A complete rationale for all opinions should be provided. 2. The RO should obtain any outstanding records from the SSA, Workers' Compensation, the Palm Desert and Loma Linda VA facilities or any other VA facility identified in the claims file. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2007). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).