Citation Nr: 0814919 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-27 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran served on active duty from June 1982 to April 1983. He also served in the Tennessee Army National Guard prior to that, from September 1981 to June 1982, and since from April 1983 to January 2005, including on active duty for training (ACDUTRA) from April to September 1999. This appeal to the Board of Veterans Appeals (Board) is from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board is remanding the claim for service connection for a low back disorder to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND Before addressing the merits of the low back claim, the Board finds that additional development of the evidence is required. The veteran contends he aggravated a pre-existing low back disorder during his ACDUTRA service from April to September 1999. See his claim dated in November 2004. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2007). The presumptions of soundness and aggravation do not, however, apply to periods of ACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995). A VA examination and opinion are needed to determine whether the veteran currently has a low back disorder that is attributable to his military service, and in particular, to his ACDUTRA service from April to September 1999. According to McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The veteran's claimed pre-existing low back disorder was not noted when he began serving on ACDUTRA in April 1999. This is perhaps because he did not have a military entrance physical examination before beginning this period of service. However, his service medical records (SMRs) show that only four days after beginning his ACDUTRA in April 1999, he reported on a Health Questionnaire for Dental Treatment that he had "had a disk removed" by a private doctor during June 1998 back surgery. This reported history does not constitute notation of a disability pre-existing service. See 38 C.F.R. § 3.303(c) (2007). Indeed, only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2007). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. Cf. LeShore v. Brown, 8 Vet. App. 406 (1995). The disorder need not be symptomatic, but only noted on entrance. Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996). Nevertheless, despite the lack of notation, other evidence raises an issue of the potential existence of a low back disability pre-existing the veteran's period of ACDUTRA service from April to September 1999. In this respect, the first documentation of such a problem is found in a February 1995 National Guard Annual Medical Certificate, wherein the veteran reported "I had a lower back strain on the job" and "went out on worker's compensation, but I was able to do light duty work." Further details are provided in a reported history for a December 1995 periodical physical examination, when he stated that he "had a lower back muscle strain from my civilian job" in November 1994. He went on to say "I feel great now." But, by 1997, he believed the pain from that back strain had returned. See his January and February 1997 National Guard Annual Medical Certificates. After he submitted a letter from a private physician, dated in April 1997, indicating that he had two ruptured lumbar disks in the L1-L2 and L4-L5 disk spaces, the National Guard placed him on Physical Profile for his back for that month. It equally deserves mentioning that a June 1998 post- operative report confirms the veteran had just undergone surgery for a decompressive lumbar laminectomy with bilateral diskectomies of the L4-L5 disks. The treating physician diagnosed herniated nucleus pulposus with spinal stenosis. A January 1999 National Guard treatment record indicates the veteran was then reporting "little to no pain," and had a well-healed surgical scar. So this raises the question of whether he had fully recovered from the pre-existing low back disability by the time his ACDUTRA service started. The sole basis of the veteran's claim is that his pre- existing low back problems were aggravated during his ACDUTRA service from April to September 1999, so even he is personally acknowledging a pre-existing disability before he began that period of service. His contemporaneous SMRs show treatment for his low back in July 1999, following physical training. He acknowledged that he had already undergone low back surgery in June 1998, but he complained of a recurrence of tightness in his low back with partial right leg radiation. The diagnosis was tenderness around the L-3 disk space, with arthritic pain. The evaluating physician commented that the veteran was fully recovered from his surgery. X-rays also were normal for his history. He was then placed on physical profile for his low back for the next five days. He had no further complaints of low back problems for the remainder of his ACDUTRA. Unfortunately, there is no separation examination report available to consider any unresolved or worsened low back problems when discharged. There is also no history of relevant medical complaint or treatment during the first few years immediately after the veteran's ACDUTRA ended in September 1999. However, in a personal statement dated in September 2004, he asserted experiencing severe back pain and varied symptoms of a continuing back disorder, including radiating pain into his right leg, since his back surgery in June 1998. National Guard treatment records from February 2002 to 2004 show complaints of recurrent back pain and leg pain, leading to his eventual medical discharge from the Tennessee Army National Guard in November 2004. There is a post-service history of continuing private treatment for the low back pain and right leg pain between 2004 and 2006. An August 2004 private MRI report by Dr. S. diagnosed the veteran with a central bulging and canal stenosis of disks along the lumbar spine, with degenerative bone change. Subsequently, in September 2004 an X-ray by a private physician, Dr. M., diagnosed "mild degenerative disc disease associated with prior surgery." But during that same examination, although the veteran indicated low back and radicular pain, he also reported he had a lumbar laminectomy in 1998 "with good result." Further, Dr. M. indicated the veteran's medical history was negative for problems. In February 2005, Dr. C. reported that he was treating the veteran for low back and right leg pain with medications and epidural steroid injections. But also that month, Dr. H., despite considering the veteran's report of ongoing and disabling low back pain, found no palpable spinal tenderness, remarking that there were "no objective findings [of disabling low back pain] on physical examination or imaging." By July 2005, a CT lumbar spine report by Dr. K. diagnosed "congenital" stenosis with degenerative changes. Also that month, Dr. E. diagnosed lumbar degenerative disk disease (per an MRI), lumbar radiculopathy, and status post L4-L5 partial diskectomy. The veteran then received three epidural steroid injections in August and September 2005 to treat his then-diagnosed lumbar radiculopathy. The most recent medical report in the record, from a private examination by Dr. H. in March 2006, shows the veteran again reported with complaints of recurrent lower back pain, but Dr. H. determined the pain was not palpable. So a VA medical examination and opinion are needed to determine whether, as the veteran alleges, his ACDUTRA service from April to September 1999 aggravated his pre- existing low back disorder that was treated surgically in June 1998. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in [or aggravated by] service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). See, as well, VAOPGCPREC 3-2003 (July 16, 2003). (indicating that VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches). Also see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Accordingly, this case is REMANDED for the following development and consideration: 1. Ask the veteran whether he has received any additional treatment for his low back condition since June 2007, when the last supplemental statement of the case (SSOC) was issued. If he has, and the records are not already on file, obtain them. 2. Schedule the veteran for a VA examination to determine the nature and etiology of any current low back disorder. The examination should comply with AMIE protocols for the appropriate examination. The veteran is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the veteran's pertinent medical and other history. The examination report must state whether this review was accomplished. Based on a comprehensive review of the claims file, as well as the current examination of the veteran, the examiner is asked to provide a diagnosis for any low back condition present. The examiner must also provide an opinion as to following: (A) Did the veteran clearly and unmistakably have a low back disorder prior to beginning his ACDUTRA service in April 1999? (B) If he did, did this pre- existing condition also clearly and unmistakably not permanently increase in severity during his period of ACDUTRA service from April to September 1999 beyond its natural progression? In making these determinations, the examiner's attention is specifically directed to the post-operative report of the veteran's June 1998 low back surgery, National Guard treatment records prior to April 1999, a SMR for treatment during ACDUTRA dated in July 1999, post- service National Guard treatment records, an August 2004 private MRI report by Dr. S., a September 2004 private treatment report by Dr. M., treatment letter by Dr. C. dated in February 2005, an examination report by Dr. H. in February 2005, a CT lumbar spine report by Dr. K. in July 2005, a treatment report by Dr. E. in July 2005, and a treatment report by Dr. H. dated in March 2006. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, the examination report should so state. 3. Then readjudicate the claim in light of the additional evidence received since the June 2007 supplemental SOC (SSOC). If the claim is not granted to the veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim 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). _________________________________________________ KEITH W. ALLEN 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).