Citation Nr: 1211368 Decision Date: 03/29/12 Archive Date: 04/05/12 DOCKET NO. 10-25 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to September 1955. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board sitting at the RO in December 2011. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND The Veteran served as a U.S. Navy seaman, cook, and ammunition handler aboard several destroyers. He contends that his current lumbar spine disease and residuals from several lumbar spine surgical procedures was caused by two injuries sustained in service. In his July 2009 claim and in hearings before the RO in May 2010 and before the Board in December 2011, the Veteran reported that on one occasion he fell backwards several feet from a shipboard ladder while carrying a heavy weight. On another occasion, he slipped on a galley deck during heavy weather and fell hard on his buttocks. He reported that on each occasion he was prescribed analgesic medication and rest by hospital corpsmen in the ship's sick bay. The destroyer did not have a physician or X-ray equipment. The Veteran reported that he continued to experience back discomfort from the time of the injuries but did not seek further treatment in service or report the injuries during his discharge physical examination because he did not have back pain at the time. In correspondence in September 2009, a fellow Sailor noted that they served together on the destroyer and that he observed the Veteran experiencing "considerable problems with his back caused from heavy duty work aboard ship." Service treatment records contain several entries for treatment in the sick bay on two destroyers for minor symptoms but are silent for any treatment or diagnosis following a back injury. No low back symptoms or abnormalities were noted on a September 1955 discharge examination. In the hearings, the Veteran stated that he sought treatment for his back within one year of discharge from service but was advised by his physician and a relative with health care qualifications not to pursue corrective surgery because of the risks. The Veteran reported that he was employed in a residential construction business for 60 years after service but primarily performed administrative work. The Veteran stated that he experienced flare-ups of back pain on occasion but endured the pain until approximately 1970 when he underwent a laminectomy to repair a herniated disc. He reported that the surgery was performed at the Bryan General Hospital in Bryan, Texas, but that he was unable to obtain treatment records because his physician was now deceased. Records of outpatient treatment from a private primary care and a private orthopedic physician starting in 1994 are silent for any back symptoms until April 2001 when the orthopedic physician noted the Veteran's laminectomy in 1970 and his report of "on and off" back pain that was becoming more severe. The physician diagnosed mild spinal stenosis and post laminectomy syndrome. Imaging studies showed degenerative disc disease, bulging, herniation, and space narrowing at many levels. The Veteran underwent several non-invasive therapies followed by additional surgical procedures. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, there is credible medical evidence of a current lumbar spine disorder and lay evidence from the Veteran and a shipmate of back injuries and subsequent symptoms in service. The Veteran's description of the injuries is consistent with the nature and circumstances of the Veteran's shipboard duties. The Veteran's contention that his current disorder is related to those injuries is sufficient to meet the low threshold requiring a VA examination and opinion. Prior to any examination, an attempt should be made to obtain any existing outstanding records of pertinent medical treatment. Records of the Veteran's first surgical treatment in 1970 are relevant to the nature and continuity of symptoms since service. Although the Veteran reported that his physician is deceased and that he was unable to obtain records of that treatment, a request to the hospital (or its successor) is in order to attempt to retrieve any inpatient records that may provide additional historical information to assist in deciding this claim. 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) (2011). Expedited handling is requested.) 1. Request from the Veteran the address of the Bryan General Hospital (or its successor if its name or operator has changed) where he underwent surgery, as well as authorization to obtain copies of any existing records of treatment and surgery for a lumbar spine disorder in 1969 and 1970. If authorized, request available records and associate any records received with the claims file. 2. Then, schedule the Veteran for a VA orthopedic examination of his lumbar spine by an appropriately qualified VA examiner. Request that the examiner review the claims file including the service treatment records and the Veteran's description of his injuries and symptoms in and after service. Request that the examiner note the review of the claims file in the examination report. a. Request that the examiner provide an evaluation of the Veteran's residual conditions from lumbar spine surgery. b. Assuming that the Veteran was injured and experienced recurrent back pain in the manner that he and his shipmate described, request that the examiner provide an opinion as to whether any current lumbar spine disability is at least as likely as not (50 percent or greater possibility) related to the injuries or any other aspect of service. c. The examiner must provide a detailed rationale for the opinion including whether the severity of the injury leading to disc surgery in 1970 is consistent with symptoms that could be endured without additional care in service or until 25 years after service. If an opinion cannot be provided without speculation, the examiner must explain whether an opinion is precluded because of the absence of evidence, state of general medical knowledge in the relevant field, or knowledge and experience of the examiner. 3. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim for service connection for residuals of a back injury. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the appellant with the development of his claim. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2011). 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2011).