Citation Nr: 1300665 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 06-08 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a spine disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1982. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the claims file. In a September 2012 letter, the Board apprised the Veteran that the Veterans Law Judge who conducted his hearing was no longer employed by the Board. He was given an opportunity to request another hearing before a different Veterans Law Judge. In a response received in October 2012, the Veteran indicated that he did not wish to appear for another hearing. In a June 2009 decision, the Board denied the Veteran's claim for service connection for a spine disorder. The Veteran appealed the decision denying the claim to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Memorandum Decision, the Court set aside the June 2009 decision and remanded the claim to the Board for readjudication, directing the Board to comply with its directives therein. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. 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 At the outset, the Board notes that a review of the claims folder demonstrates that not all of the requisite duties to notify have been fulfilled. On March 3, 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The Veteran does not appear to have been sent an appropriate notification letter advising of him of the requirements set forth in Dingess, and on remand he must be sent such a letter. The Veteran was afforded an examination for his claimed spine disability in December 2008. Upon review of the claims file and evaluation of the Veteran, the examiner opined that the Veteran's current spine condition was unrelated to service. Specifically, the medical examiner opined: In my review of [V]eteran's C file, I found 2 occasions in which [V]eteran presented to sick call complaining of low back pain. One occasion was OCT 1980 in which [V]eteran reported having back pain while playing basketball. The other occasion was in Nov 1980 in which [V]eteran reported having back pain from moving wall lockers. In both of these occasions muscle spasms was diagnosed and treated with nonsteroidal antinflammatory medication and measures such as ice packs. There was no indication that these conditions did not respond to this conservative treatment as there are no further episodes of back pain prior to [V]eteran's discharge in 9/25/[82]. It is unlikely that either one of these incidents would have lead to long term conditions. The Board finds this examination report is insufficient for several reasons. As pointed out by the Court in the April 2012 Memorandum Decision, the VA examiner did not address the actual etiology of the Veteran's current spine disability. Rather, he only found it not likely to be service-related. Additionally, while he acknowledged the in-service spine incidents, the VA examiner failed to explain why either of these incidents would not have led to long term conditions. In rendering his opinion, the examiner also did not account for the Veteran's assertions as to having spine problems since service. In this regard, the Board notes that the Veteran is competent to state that he has had spine problems, mainly back pain, ever since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, the Veteran's service treatment records show that in October 1980, there was a palpable spasm over the right side between the thoracic and lumbar spine areas and scoliosis with convexity of the right. Notably, post-service treatment records include an October 2003 radiology report showing mild degenerative osteoarthritic changes with possible slight narrowing of L5-S1 and mild scoliosis with a convexity to the right. As the Court pointed out, the VA examiner did not discuss whether there was any correlation between the scoliosis noted in service and post-service. Accordingly, the Board finds that another examination is necessary to determine the etiology of the Veteran's current spine disability, specifically taking into account all of the evidence of record including the Veteran's competent statements as to having had back problems since service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a VCAA notice for his service connection claim complying with the Court's holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) to specially include information about disability ratings and effective dates for the award of benefits, and an explanation as to the type of evidence that is needed to establish both a disability rating and an effective. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 2. Schedule the Veteran for an examination to ascertain the nature and etiology of his current spine disability. The claims file and a copy of this Remand, which discusses the Court's decision in this case, must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current spine disability is related to service, to include the two documented incidents during service in October and November 1980. If the examiner finds that the Veteran's current disability is not related to either incidents during service, he/she must address why/how the service incidents would not have led to long term conditions. Also, if not related to service, the examiner must address other etiologies of the current disorder. The examiner must also address the normal examination at entry, and whether there is any correlation between the notation of scoliosis during service in October 1980 and in the October 2003 radiology report. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's lay evidence of having had problems with his spine (i.e., back pain) ever since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). Any opinion provided must include an explanation of the basis for the opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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. 2012). _________________________________________________ BETHANY L. BUCK 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) (2012).