Citation Nr: 1136823 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 04-34 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a back disorder with degenerative arthritis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1950 to August 1952. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Indianapolis, Indiana, which denied the Veteran's claim of entitlement to service connection for a back disorder with degenerative arthritis. The Board has previously considered this appeal. In May 2008, the Board remanded the Veteran's claim for further development, specifically in an effort to obtain the Veteran's service treatment records from the National Personnel Records Center ("NPRC") and the Joint Services Records Research Center ("JSRRC"). In May 2009, the VA Appeals Management Center ("AMC") issued a Supplemental Statement of the Case ("SSOC"), in which it continued to deny the Veteran's claim. The claims folder was then returned to the Board for further appellate proceedings. In a July 2009 decision, the Board denied the appellant's claim. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). In March 2010, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney filed a Joint Motion for Remand ("Joint Motion"), requesting that the Court vacate that part of the Board's decision which denied the Veteran's claim, and that it remand the case for further development and readjudication. In March 2010, the Court granted the parties' Joint Motion, vacated that portion of the Board's decision which denied service connection for a back disorder with arthritis, and remanded the case to the Board for compliance with directives that were specified in the Joint Motion. In August 2010, pursuant to the Court's order, the Board remanded the claim to the AMC so that an additional search for service treatment records could be undertaken. In October 2010, the AMC received sick/morning reports, showing that the Veteran sustained an injury between July and August 1951. Thereafter, in January 2011, the AMC afforded the Veteran another VA examination, and pursuant to the examination results, issued a July 2011 SSOC, in which it again denied the Veteran's claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND As discussed above, in January 2011, pursuant to the Board's remand instructions, the Veteran was afforded another VA examination to determine whether his current arthritic back condition was caused by, or was otherwise related to, military service. Based on the examination findings, the VA examiner concluded that it was less likely than not that the Veteran's back disorder, diagnosed as multilevel degenerative disc disease, was related to active service. In this regard, the Board notes that the Court has held that, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must be adequate, or, at a minimum, VA must notify the claimant as to why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, a medical examination must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, although the Veteran has now been provided with three VA examinations pursuant to his claim of entitlement to service connection for a back disability, the Board concludes that the evidence of record is still not sufficient upon which to base a decision. Specifically, the Board concludes that the January 2011 VA examination was inadequate. In this regard, the Board notes several deficiencies within the examination report, the most significant being the examiner's rationale for his conclusion. In support of his opinion that the Veteran's multilevel degenerative disc disease was less likely than not related to service, the VA examiner wrote the following: [I]n-service military medical records are not available. No records are available following the media [sic] discharge in 1952 until later years. Therefore there is no significant continuity of care[,] although patient admits being treated by his family physician. [T]herefore, I can only conclude that this patient is less likely than not related to service-connected injury and lack of continuity of care evidence. VA compensation and pension examination, January 2011 (emphasis added). In this regard, the Board observes that, as an initial matter, the examiner specifically noted that, although his review of the Veteran's claims folder included his VA treatment records, it did not include a review of his service treatment records. In this case, the Veteran has consistently claimed that he experienced chronic back pain and/or a back disorder during service in Korea while serving with a tank battalion, which he says required him to maintain a hunched-over position while inside the tank; he subsequently stated that he received treatment for the condition between July and August 1951. Although reasonable attempts were previously made to obtain his complete service treatment records, the National Personnel Records Center ("NPRC") in St. Louis, Missouri, reported that, after an extensive and thorough search, it was unable to locate any records for the Veteran. It further stated that his records were most likely lost during a fire at the NPRC in 1973. As noted above, in August 2010, the Board remanded the claim so that the AMC could make an additional attempt to obtain service treatment records. In October 2010, the AMC received a service morning report, showing that, on August 5, 1951, the Veteran sustained an injury in the line of duty and was taken to the hospital for treatment; the record contains no additional details as to the nature of the injury or the diagnosis received, however. In spite of the sparse evidentiary record, the VA examiner stated that he did not review service treatment records, and, significantly, made no reference to having reviewed the August 1951 morning report. In addition, the Board observes that, in his examination report, the VA examiner noted that the Veteran had several symptoms in addition to his degenerative back disorder, including urinary incontinence and erectile dysfunction, symptoms which are sometime associated with a low back disorder. See General Rating Formula for Diseases and Injuries of the Spine Formula for Diseases and Injuries of the Spine, Note (1). However, with regard to the specific examination question, "Is etiology of these symptoms unrelated to claimed disability?," the examiner answered "no," which would indicate that such symptoms are related to the claimed back disorder. As the examiner failed to mention these symptoms in the diagnosis portion of the examination, the Board finds that clarification is necessary as to whether such symptoms are or are not related to his diagnosed back disorder. Finally, the Board notes that the examiner's rationale for his conclusion that the Veteran's back disorder was less likely than not related to service appears to have been primarily based on a finding that there was "no significant continuity of care." In this regard, the Board notes that, 38 U.S.C.A. 1154(a) (West 2002), in relevant part, requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (the United States Court of Appeals for the Federal Circuit ("Federal Circuit") explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis). Here, despite the lack of service treatment records or records showing post-service treatment for a back condition shortly after service, the Board finds that the Veteran is competent to report having sustained an in-service injury, as well as resultant pain both during and after service, even though service connection has not been established. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (the Court held that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."). Accordingly, in light of the fact that (1) the VA examiner appears to have not considered the available service morning report, (2) a clarification of the examination findings is necessary, and (3) it appears that the examiner did not take into consideration the Veteran's lay testimony concerning his claimed injury and ensuing continuity of symptomatology, the Board finds that a remand for an addendum to the most recent VA examination is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO/AMC should return the claims folder, as well as a copy of this REMAND, to the examiner who performed the January 2011 VA examination (if at all possible) to review his examination report, keeping in mind that he must accept as fact the following principals: (1) the Veteran is competent to report having experienced a back injury and/or symptoms of a back disorder during service, notwithstanding a lack of documentation; and (2) the Veteran has experienced back pain ever since service. The examiner must note that the claims folder has been reviewed, to include the service morning report, dated August 5, 1951, showing that the Veteran sustained an injury in the line of duty, and was subsequently sent to the hospital. The examiner should thereafter prepare an addendum to the January 2011 examination report, in which he addresses whether the Veteran has any additional symptoms (including objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment and erectile dysfunction) that are related to his multilevel degenerative disc disease (noting that, in his previous report, he stated that the Veteran had urinary incontinence as well as erectile dysfunction). After taking all of the aforementioned into consideration, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's multilevel degenerative disc disease was manifested during or was otherwise causally related to the Veteran's active duty service. The examiner must explain the medical rationale for his conclusion, specifically taking into account the aforementioned August 1951 service morning report, as well as the Veteran's lay testimony. If an opinion cannot be made without resort to speculation, the examiner should so state and explain why this is so. If, and only if, the examiner who performed the January 2011 VA examination is not available, another VA examination should be scheduled to obtain an opinion regarding whether the Veteran's cervical and lumbar spine disorders are related to, or are otherwise the result of active duty service. In such case, the examiner must follow the instructions noted in paragraph 1, above, and provide a complete rationale for any opinions expressed, as well as a discussion of the medical principles involved. 2. Thereafter, the RO/AMC should review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to, and in compliance with, the directives of this remand. If it is not, corrective procedures should be implemented. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. The issue on appeal should thereafter be adjudicated. If the benefit sought is denied, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order. 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. 2010). _________________________________________________ BARBARA B. COPELAND 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) (2010).