Citation Nr: 1119298 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 06-34 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for lumbar spine degenerative disc disease and arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had verified active service from October 1979 to October 1982 and from July 1983 to May 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2005 rating decision of the Louisville, Kentucky, VA Regional Office (RO). This case has previously come before the Board. In November 2009, the matter was remanded to the agency of original jurisdiction for additional development. The case has been returned to the Board for further appellate review. The Veteran was afforded a personal hearing before a decision review officer at the RO in December 2006. A transcript of the hearing has been 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 Veteran if further action is required. REMAND The Veteran failed to report for a scheduled VA examination in April 2010. In correspondence received in March 2011, he stated that he did not receive notice of the scheduled VA examination, and it was indicated that he was willing to report for examination and requested that the VA examination be rescheduled. In that regard, the Board notes that the notice to the Veteran of the scheduled VA examination has not been associated with the claims file. In addition, the record reflects a change of address close in time to the scheduled examination, although the date of the address change is not reflected in the claims file. In this case, the Board finds that the Veteran should be afforded another opportunity to report for VA examination. The Veteran is informed that failure to report for a scheduled VA examination may result in the denial of the claim. See 38 C.F.R. § 3.655 (2010). As noted in the November 2009 remand, the Veteran had two periods of active service. He asserts he has residual disability of the lumbar spine due to a back injury sustained during the second period of service. The Board notes that a July 2007 VA report of magnetic resonance imaging (MRI) of the lumbar spine shows an impression of degenerative disc disease at L5- S1 associated with facet arthritis, as well as minimal bilateral neural foraminal narrowing, and mild disc bulge at L4-L5, and mild facet arthritis and hypertrophy. In addition, the September 1979 service entrance examination report for the first period of service shows that the spine and musculoskeletal system were normal. A December 1979 treatment record reflects complaints of low back pain having had an onset one month earlier while carrying a heavy bag. Point tenderness at L3-L4 was noted, and aspirin and gentle stretching were recommended. The March 1983 service entrance examination report for the second period of service shows that the spine and musculoskeletal system were normal and on the accompanying medical history he denied having or having had recurrent back pain. A September 1983 treatment record reflects complaints of back pain with an onset two days earlier when he was hit in the back while playing football. The examiner noted "Back pain in lumbar," and assessed musculoskeletal pain secondary to trauma. An October 1983 record notes that he had had a blow to the chest playing football the previous Saturday and that he complained of pain when he bent to the left or right, as well as with sit-ups. A four-inch bruise on the right hip was noted, and it was noted to be probably just a bone bruise, and further evaluation yielded an assessment of right flank contusion secondary to trauma. An April 1984 record reflects that the Veteran had fallen off of the roof of his single story home, landing on his back, and specifically denied back pain. The April 1986 separation examination report shows that the spine and musculoskeletal system were normal and on the accompanying medical history he denied having or having had recurrent back pain. VA treatment records, dated in 1998, reflect complaints of an onset of back pain and it was noted that something had 'popped' in his low back. X-ray examination of the lumbosacral spine was noted to be negative and the assessment was acute back strain. A September 2000 record notes chronic low back pain, and records, dated in June 2001, show an assessment of low back pain, worrisome for disc disease, and it was noted that the Veteran had had the same problem one year earlier. A July 2001 record notes MRI showed degenerative joint disease at L5-S1. The March 2005 VA examiner opined that it was less than likely that the Veteran's in-service injury caused his current back disorder, noting no chain of evidence of treatment of back pain in the intervening years from 1983 until 2001. The examiner added that service treatment records reflected pain in the left lumbar musculature, and that his current pain was directly over the lumbar spine in the L5-S1 area. An October 2006 private report notes a history of intermittent back pain since the early 1980s, with an onset during service and severe episodes of exacerbation with symptoms to include left buttock pain. The assessment was L5-S1 disc degeneration with probable nerve root compression on the left side. In November 2006, the same physician stated the following: Clarification: Patient has returned today with his consultation note. He states that his back pain started when he was in the military. I have no idea what his gripe is, as it says right in the second line of the History of Present Illness that his symptoms started in the military. I don't know how much more clearly this can be made. Since then he has been suffering from intermittent back pain as stated in the first sentence of the History of Present Illness. This is based on the information that the patient has provided to me. If there is any other information, I would welcome a review of that. At the hearing, the Veteran testified to having had back pain since the in-service foot ball injury. Transcript (2006). In a November 2006 letter from the Veteran's former employer, it was noted that the Veteran had been employed from 1987 to 1995 as the maintenance supervisor and that he had worn a back brace during his employment. On VA examination in February 2007, the examiner stated, in pertinent part, as follows: Patient chronic lower back pain is less likely as not (less than 50/50 probability) caused by or a result of his back injury in 1983 while on active duty. 1983 was playing in Batalion football game was struck in back. Was treated in military clinic one time, continued on active duty until 1986. RATIONALE FOR OPINION GIVEN: Pt served for 3 year on active duty after injury. He worked several years after discharge from the military. He has evdivence of a herniated disc with Left sided radiculopathy. His xrays show degenative that are likely chronic in nature. His spinal conditional he admits has progressively gotten worse. His chronic back pain is likely a result of several years of degenrative osteoarthritis. In this case, the evidence is inadequate for a determination. Accordingly, the case is REMANDED for the following action: 1. Associate the notices to report for the April 2010 VA examination and the examination requested below with the claims file. 2. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of a lumbar spine disorder, to include degenerative disc disease and arthritis. The claims file should be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. Request that the VA examiner provide an opinion in terms of whether lumbar spine arthritis was manifest during either period of active service or within the initial post-year of separation from either period of service and an opinion in terms of whether it is "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood) that a lumbar spine disorder, to include degenerative disc disease or arthritis, is attributable to in-service disease or injury with consideration of the veteran's reported back pain since the in-service football injury. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. A complete rationale should accompany any opinion provided. 3. In light of the above, the claim should be readjudicated. The AOJ should ensure all directives in this remand have been accomplished, to the extent possible, to include review of any VA medical opinion obtained for completeness and to ensure that a response to all questions posed has been provided, and if not, further development should be undertaken in that regard. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).