Citation Nr: 1125857 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 03-19 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disability, including degenerative disc disease (DDD) of the lumbosacral spine. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to October 1993. This matter originally came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the regional office (RO) in Roanoke, Virginia. The Board remanded this case for additional evidentiary development in August 2006 and in November 2008. In an April 2010 decision, the Board denied the claim for service connection for a low back disability. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). Pursuant to a February 2011 Joint Motion for Remand (JMR) that was entered into by the Veteran and the Secretary for VA (parties), the Court vacated the April 2010 decision in a February 2010 Order and remanded the case to the Board. In accordance with the instructions set forth in the JMR, which was incorporated by reference into the Court's order, 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 In the JMR, the parties agreed that the Board failed to adequately explain why VA's duty to assist the Veteran did not require providing a VA medical examination to determine whether the Veteran's complaints of back pain within one year of service represented manifestations of arthritis, which may be subject to presumptive service connection if it was manifested to a compensable degree within that one-year period. The parties noted that there was evidence that the Veteran experienced back pain within one year of his service discharge. The parties also noted that the Veteran was eventually diagnosed with degenerative disk disease (DDD) and that it was unclear whether this is a form of arthritis. In accordance with the instructions set forth in the JMR, a remand is necessary to provide the Veteran with a VA examination to determine whether he has any type of arthritis that manifested to a compensable degree within one year of service discharge. Additionally, it was noted in the April 2010 Board decision that certain of the Veteran's private treatment records from Dr. P. were destroyed in a flood. In correspondence dated in June 2010, the Veteran related that copies of the records were recovered and were now available. Therefore, an additional attempt to obtain the Veteran's private treatment records from Dr. P. should be made. Finally, in an October 1999 private medical record, the Veteran reported, "The lawsuit against the other party in the [automobile] wreck was settled in 1997." The Veteran has claimed that the January 1996 motor vehicle accident aggravated a low back disability. If medical records were created in connection with the Veteran's lawsuit, the Board finds that such records are relevant to the issue on appeal. Thus, the Veteran is requested to provide VA with the names and addresses of the physicians who examined the Veteran in connection with the lawsuit. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and have him provide VA permission to obtain Dr. P.'s medical records and the medical records associated with his lawsuit against the other party in the January 1996 automobile accident. See 38 C.F.R. § 3.159(c)(1)(i) and (ii) (2010) (claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians by providing enough information to identify and locate existing records and must authorize the release of existing records). The Veteran should be informed that he may obtain the records himself and send them to VA. 2. Following completion of the above to the extent possible, the Veteran should be afforded a VA examination to determine whether the complaints of back pain within one year of service discharge represented the onset of arthritis. All necessary tests and studies should be performed. The examiner must be provided with the claims file for review. While the entire four volumes of the claims file must be reviewed in connection with the examination, the examiner is informed of the following facts: * The Veteran served on active duty from October 1989 to October 1993. * The service treatment records do not show any complaints of low back pain. There is no separation examination of record. See service treatment records in manila envelope in Volume 1 of the claims file. * A November 1995 VA treatment record shows that the examiner stated the Veteran complained of chronic back problems and that the Veteran's outside physician requested the Veteran to have a CT scan of the back. The examiner noted that Dr. P wanted to rule out ruptured disc. The low back complaints had been occurring for approximately one year. A CT scan was ordered. See VA treatment record in Volume 2 of the claims file tabbed in yellow on the left side with the month and year. * A December 18, 1995, VA treatment record shows that the CT scan revealed L5-S1 left herniated disc with narrowing of left neural foramina. See VA treatment record in Volume 2 of the claims file tabbed in yellow on the left side with the month and year. * A December 26, 1996, VA treatment record shows the Veteran reported that his back began to bother him about one year after discharge from service. See VA treatment record in Volume 2 of the claims file tabbed in yellow on the left side with the month and year. * In January 1996, the Veteran was in a motor vehicle accident. He reported that the accident aggravated already ongoing back pain. See October 2000 private psychological report in Volume 2 of the claims file tabbed in green on the left side with the month and year (October 2000). * A January 18, 1996 private MRI shows findings of: "Sagittal scan shows mild degenerative changes. Shows normal height, signal intensity and alignment of the vertebrae. The thecal sac and spinal canal are unremarkable, except for L1-L2 and L5-S1 levels described in the axial scan." The Impression was: "Disc herniation, which is significant at L5-S1 level and small at L1-L2 level. Otherwise unremarkable." See January 1996 private MRI report in Volume 1 of the claims file tabbed in green on the left side with the month and year. * A February 1996 private medical record shows that the Veteran reported a history of lower back pain to a mild degree with occasional radiation into his left leg for the past 18 months, but the pain had become worse suddenly when he was in a motor vehicle accident on the 5th of January. See February 1996 private medical record in Volume 1 of the claims file tabbed in green on the left side with the month and year. * A January 1997 private medical record shows that the examiner stated that after reviewing the Veteran's chart, he believed that based upon the history and physical findings that the "disk rupture probably was worsened and became significantly symptomatic as a result of his car wreck. He admits that he did have some lower back pain prior to the accident, but that it was very mild." See January 1997 private medical record in Volume 4 of the claims file tabbed in green on the left side with the month and year. * The Board requested private medical records from Dr. P (who had been the Veteran's treating physician in 1995), which records are not currently part of the claims file. Thus, those records may have been associated with the claims file and are relevant to the issue on appeal, as Dr. P treated the Veteran for low back pain in 1995. After conducting a complete examination of the Veteran with reference to his back pain, the examiner should provide an opinion as to the following questions: (i) Is it at least as likely as not (at least 50 percent likely) that the Veteran's complaints of back pain within one year of service discharge represented the onset of any type of arthritic condition? For example, did the December 1995 CT scan, which revealed L5-S1 herniated disc with narrowing of left neural foramina, show evidence of arthritis? If so, is it at least as likely as not that such was present in October 1994 (one year after the Veteran's service discharge)? Please state yes or no and substantiate your answer with medical principles and evidence in the claims file. (ii) Did the January 1996 MRI of the lumbar spine show evidence of arthritis? If so, is it at least as likely as not that such was present in October 1994 (one year after the Veteran's service discharge)? Please substantiate your answer with medical principles and evidence in the claims file. (iii) Is degenerative disk disease a form of arthritis? Please state yes or no and substantiate your answer with medical principles and evidence in the claims file. (iv) Is it at least as likely as not (at least 50 percent likely) that any current low back disability was caused by a disease or injury that occurred during the Veteran's military service, including the Veteran's reported history of heavy lifting during his service. The examiner should provide a complete rationale for the conclusions in the report of examination. If the examiner is unable to answer one or more of the questioned posed above, then he/she should indicate why this is the case. 3. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter 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. 2011). ________________________________________________ Alexandra P. Simpson' 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) (2010).