Citation Nr: 1003933 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 07-17 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for degenerative disk disease of the lumbar spine, L4-5. 2. Entitlement to service connection for sacroiliac joint dysfunction with instability and hypermobility. 3. Entitlement to service connection for a right hip and leg disorder. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from August 1973 to February 1975. The appeal comes before the Board of Veterans' Appeals (Board) from December 2005 and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Acting Veterans Law Judge at a Board videoconference hearing in October 2009. A transcript of this proceeding is associated with the claims file. 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 During the October 2009 hearing the Veteran testified that he had been in receipt of Social Security Administration (SSA) Supplemental Security Income (SSI) benefits, and that there were accordingly SSA records to be obtained potentially relevant to his claim. The undersigned Acting Veterans Law Judge held the record open for 60 days following that hearing expressly to allow submission of additional records including records obtained from SSA, but no such records have been forthcoming. The United States Court of Appeals for Veterans Claims (Court) has held that where a veteran is in receipt of Social Security disability benefits, the medical records underlying that award are relevant to issues such as those on appeal here. Masors v. Derwinski, 2 Vet. App. 181 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). As such, SSA records should be obtained for association with the claims file, and remand is required for that purpose. A review of the record also shows that another VA examination is necessary in this case. Service treatment records show several complaints of back pain during the Veteran's military service, specifically in November 1973, June 1974, September 1974, and October 1974. Post service treatment records show injuries to the low back and hip as early as September 1998 and an impression of degenerative disk disease and central protrusion of the L-4/L-5 disk without neural impingement as early as June 2004. The Veteran was afforded a VA examination in October 2005 in which the examiner opined that the Veteran's current lumbar spine disorder was not related to his military service. The examiner noted that the Veteran had only been treated twice in service for a back condition and also noted that, post service, the Veteran performed work in coal mining, in the lumbar industry, and most recently as a hunting and fishing guide. In a November 2005 addendum opinion that examiner noted that the Veteran had "performed heavy physical work for his entire occupational career following military service," with back injuries resulting from such activities as "carrying heavy rocks working as a mason" and injury while working on an oil rig in 1998. While the VA examiner in October 2005 substantially noted the Veteran's post-service history of a career in heavy manual labor with injuries to the back, that VA examiner failed to note the Veteran's history of horseback riding and farm work. The VA examiner was also inaccurate in her statement that the Veteran was only treated twice in service for a back condition without additional follow-up. The VA examiner was also erroneous in characterizing the back injury in service as being struck in the low back with a metal bar while jumping on a trampoline. As the Veteran has explained, and as the service treatment records support, the injury occurred when the Veteran was jumping excessively high on the trampoline and his foot struck a bar beneath the trampoline upon coming down on his feet, with one foot striking the bar through the stretched fabric. As the Veteran explained during the October 2009 hearing, this resulted in a jamming- type blow to the leg causing a force to the low back. The VA examiner expressly noted that a blow directly to the back, which the in-service injury was not, would typically not cause a disk injury. In a September 2009 statement, Dr. C.N.B. opined that the Veteran's current lumbar spine disorder is related to his military service. This opinion was predicated on the Veteran's report that he had ongoing back problems since military service, that his manual labor work post service was only intermittent, and that any injury to the back post service was aggravation of the condition already present from service. However, the reasoning behind Dr. C.N.B.'s September 2009 is not supported by the balance of the evidentiary record. Rather, in a statement submitted by the Veteran's sister in August 2006, she stated that the Veteran had performed manual labor post service on a full-time basis up until 12 years earlier, at which point he only worked part-time due to disabilities of the back and hip, and that he stopped working altogether two years earlier. These assertions regarding reduced work and stopping work post service are substantially corroborated by the statement of a friend of the Veteran, also submitted in August 2006 The claims file also contains five pages of private treatment records dated in 1998 and 1999. These records indicate that the Veteran performed work on an oil rig, and also worked with coal cars. Specifically, an August 1998 record reveals that the Veteran was then employed as an oil rigger and complained of current low back pain associated with activity. That record noted a past medical history of multiple injuries, including being crushed on the left with a coal car, and injuring the right knee and spine falling off a horse. The claims file also contains a June 2006 treatment record documenting the Veteran's complaint that he could no longer perform work around the house or farm, including care of livestock. Thus, from the August 1998 and June 2006 treatment records a picture emerges of an active post-service lifestyle including not only working in coal mines and on oil rigs and logging, but also running a farm, riding horses, and tending to livestock. These post-service activities were not adequately noted or addressed in the September 2009 statement from Dr. C.N.B. Thus, both the VA examination in October 2005 (with November 2005 addendum) and the September 2009 statement from Dr. C.N.B. are based on inaccurate factual premises. Such opinions are not probative in the Board's adjudication. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A further VA examination is thus required upon remand, to afford opinions addressing the claimed disabilities and their etiologies based on an accurate medical history (to the extent feasible). Accordingly, the case is REMANDED for the following action: 1 Contact the Veteran and ask him to provide additional information or evidence regarding any private treatment received for his claimed disorders, to the extent records have not already been obtained and associated with the claims file. In particular, the Veteran should be asked to assist in obtaining additional records of treatment or evaluation for work-related injuries post service including (to the extent applicable) work as a mason, a coal miner, an oil rigger, a farmer, a horseback rider, and a hunting and fishing guide, and during any leisure pursuits. The Veteran should be asked to provide an accurate statement of physical work and leisure activities and injuries from service up to the present. The Veteran should also be asked to inform of any SSA hearings conducted and any SSA determinations made since service. All records and responses received should be associated with the claims file. 2. The RO (AMC) should obtain from the Social Security Administration the records pertinent to the Veteran's claim(s) for Social Security disability benefits as well as the medical records relied upon concerning any claim(s), including any records obtained or created and any determinations made. All records and responses received should be associated with the claims file. 3. Thereafter, afford the Veteran an examination to address whether his claimed lumbosacral degenerative disk disease; sacroiliac joint dysfunction with instability and hypermobility; and right hip and leg disorder, based either on causation or aggravation, are related to a trampoline injury in service. The claims folder must be made available to the examiner prior to the examination. Any necessary tests or studies should be conducted. The examiner should do the following: a. For any current lumbosacral degenerative disk disease, sacroiliac joint dysfunction with instability and hypermobility, and right hip and leg disorder, separately for each disorder identified, address whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the trampoline accident in service in November 1973 either caused or aggravated (permanently increased in severity) the disorder; or whether it is at least as likely as not that a disorder caused by that trampoline accident in turn caused or aggravated the current disorder (secondary causation); or whether, alternatively, such causation related to injury in service is unlikely. In providing these opinions, the examiner should address whether injuries or activities post service are the more likely cause of the current lumbosacral degenerative disk disease, sacroiliac joint dysfunction with instability and hypermobility, or right hip and leg disorder. b. The examiner should explicitly address the likely causes of any current low back, sacroiliac, right hip and right leg disability. In so doing, the examiner should address, to the extent pertinent, medical knowledge regarding injuries to lumbosacral region and hip, from the potential causes represented in the record: the documented trampoline accident in service; years of heavy manual work post-service including as a mason, a coal miner, a logger, and an oil rigger; physical activities farming and raising livestock on a family farm; horseback riding; and any relevant injuries experienced by the Veteran during those activities. c. The examiner should note that the prior October 2005 VA opinion and the September 2009 statement from Dr. C.N.B. are not probative for Board adjudication because they rely on inaccurate factual premises as contradicted by the historical medical records and documented facts within the claims file. These inaccuracies included inaccurate accounts of in-service treatment, and inaccurate accounts of work and activities and/or injuries to the back post service. d. The examiner should note relevant evidence, including the VA examination report in October 2005 with an addendum dated in November 2005; submitted private physician letters or examinations including a June 2007 letter by Dr. D.J.M., a May 2009 examination report by Dr. J.K.W., and a September 2009 examination report by Dr. C.N.B.; service treatment records; private treatment records dated in 1998 and 1999; VA treatment records beginning in 2004; other treatment or evaluation records; any records obtained from the Social Security Administration; and any other relevant evidence of records. f. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Thereafter, the RO (AMC) should readjudicate the remanded claims. If any of the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate 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. 2009). _________________________________________________ APRIL MADDOX Acting 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) (2009).