Citation Nr: 1300746 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-41 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability with radiculopathy. 2. Entitlement to an initial rating in excess of 30 percent for coronary artery disease and/or entitlement to an effective date earlier than February 25, 2008 for the grant to service connection for coronary artery disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1949 to February 1953 and from August 1954 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In his November 2009 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. In February 2010, the Veteran withdrew his request for such hearing. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d),(e) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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, DC. VA will notify the Veteran if further action is required. REMAND In March 2012, the appeal was remanded for further development, namely to obtain additional treatment records and to schedule a VA examination. While the attempts to associate outstanding treatment records were overall satisfactory, albeit largely unsuccessful, the Board's review of the report from the VA examination performed in April 2012 reveals the opinion to be inadequate. The Veteran contends that his low back disability with radiculopathy started in approximately 1969 or 1970 while at Forbes Air Force Base and has continued to the current time. He has also reported that he was first diagnosed with low back arthritis in 1975 at Cannon Air Force Base just a few years after his 1971 separation from his thirty years of active duty. Service treatment records document the Veteran's complaints and treatment for thigh pain in January and February 1961, low back pain in May 1964, right leg numbness in May 1966, and left leg numbness in February 1970. Further, the Veteran is competent to report on the observable symptoms of his low back disability with radiculopathy (i.e., limitation of motion, pain, and numbness) while on active duty and since that time as these symptoms are capable of lay observation. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). The earliest post-service treatment records of date are from 1998 and reflect complaints of chronic low back pain and a diagnosis of degenerative joint disease. Subsequently, the Veteran was also diagnosed with herniated nucleus pulposus at L4-L5 and L5-S1 with radiculopathy. The above history was the basis for the March 2012 remand for a VA examination. The examination took place in April 2012. After the VA examination was completed, the examiner was asked to provide an opinion in accordance with the following: a. Is it at least as likely as not (50 percent probability or more) that any of the Veteran's current low back disabilities including his radiculopathy were caused by his active duty or has continued since service? b. If the Veteran's low back disabilities include arthritis, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year? . . . In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his low back disability with radiculopathy (i.e., limitation of motion, pain, and numbness) while on active duty and since that time even when his records are negative for symptoms of or a diagnosis of a low back disability with radiculopathy; the fact that his service treatment records document complaints of low back pain and leg numbness; and the fact that the post-service record shows him bring diagnosed with both lumbosacral degenerative joint disease and herniated nucleus pulposus with radiculopathy. The examiner reviewed the claims file and noted the various reports of symptoms in service treatment records, but with respect to the Veteran's subjective observations, the examination report only notes that the Veteran did not recall any specific low back injury while in the Air Force. The rationale for the negative opinion was that if the current disorder was related to the in-service complaints, the disorder would have become more obvious within 18 months after discharge. The examiner stated that instead, the symptoms came on at least 20 to 30 years later and so relating the current spinal problem to military service was impossible. The examiner also indicated that there was no history of any type of injury that could have lead to the current problem. This opinion does not acknowledge the Veteran's subjective reports of symptoms since service or his claim that he was diagnosed with degenerative joint disease in 1975. Further, the Board recognizes that the first treatment record showing a diagnosed back disorder is dated in 1998, but that record reports chronic low back pain and a diagnosis of degenerative joint disease, neither of which would have suddenly developed one day in 1998. Degenerative joint disease is the result of a disease process that occurs over time, and the pain must have persisted over time for it to be considered chronic. Moreover, while the examiner discusses in detail the findings at a January 2012 MRI, the results from an April 2007 MRI are not noted. For these reasons, the Board finds the April 2012 VA opinion inadequate, and the appeal is remanded so that another opinion may be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Board notes that even though VA treatment records from the San Angelo VA Outpatient Clinic dated from November 2010 through April 2012 were added to the claims file, the MRI results from January 2012 documented by the April 2012 VA examiner are not of record for the Board to review independently. MRI results from the same date as they relate to the kidneys are reported in the treatment notes of record, but not the results regarding the lumbar spine. Thus, the MRI results from the January 2012 MRI of the lumbar spine should be associated with the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Further, the Board observes that while a note in the claims file indicates that VA treatment records from the San Angelo Clinic have been updated through November 2012, there are no VA treatment records for the Veteran dated after April 2012 of record. Thus, all VA treatment records for the Veteran from within the Big Spring VA Medical Center (VAMC), parent facility of the San Angelo Clinic, dated from April 2012 forward should be added to the claims file. Id. Further, the Board notes that the most recent address of record for the Veteran is in New Mexico. Therefore, the Veteran should be asked to identify any VA treatment he has received in his new location, and any records for the Veteran from that facility should also be obtained. Id. Finally, in a December 2010 rating decision, service connection was granted for coronary artery disease and an initial 30 percent rating evaluation was assigned, effective February 25, 2008. Of record is a December 2011 letter from the RO to the Veteran acknowledging his notice of disagreement (NOD) with respect to that decision. The NOD is not associated with the claims file; nor is a statement of the case (SOC) in response to the NOD. There is no indication in the file that an SOC has been issued, therefore the Board must remand the appealed issue from the December 2010 rating decision that assigned a 30 percent rating and an effective date of February 25, 2008 for service connection for coronary artery disease so that the NOD can be associated with the claims file and an SOC issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran identify any VA facilities from which he has sought treatment other than the Big Spring VAMC-San Angelo Clinic, in particular any facilities in New Mexico. All requests and responses, positive and negative, must be documented in the claims file. 2. Associate with the claims file all VA treatment records identified by the Veteran as a result of the above request and all VA treatment records dated from April 2012 forward for the Veteran from within the Big Spring VAMC, including the San Angelo Clinic. All requests and responses, positive and negative, must be documented in the claims file. 3. Request a clarification of the opinion from the April 2012 VA examiner. The claims file should be made available for review, and the examination report should reflect that such review occurred. Once a review of record is complete, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or more) that any of the Veteran's current low back disabilities including his radiculopathy were caused by his active duty or have continued since service? b. If the Veteran's low back disabilities include arthritis, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his low back disability with radiculopathy (i.e., limitation of motion, pain, and numbness) while on active duty and since that time even when his records are negative for symptoms of or a diagnosis of a low back disability with radiculopathy. The examiner should also address the fact that the earliest post-service treatment note documenting complaint, treatment, or diagnosis with respect to the low back shows chronic pain and degenerative joint disease, which indicates that the Veteran had symptoms for some time prior to that treatment note. Moreover, the examiner should consider the April 2007 and January 2012 MRI results and whether the degree of degeneration shown is consistent with the Veteran's reported medical history and a diagnosis of degenerative joint disease in 1998 or before. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. A complete rationale for any opinion advanced must be provided. 4. If, and only if, the April 2012 VA examiner is not available, schedule the Veteran for another VA examination to assess the etiology of his low back disorder. The claims file should be made available for review, and the examination report should reflect that such review occurred. Once a review of record and examination of the Veteran is complete, the examiner should address the following: c. Is it at least as likely as not (50 percent probability or more) that any of the Veteran's current low back disabilities including his radiculopathy were caused by his active duty or have continued since service? d. If the Veteran's low back disabilities include arthritis, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his low back disability with radiculopathy (i.e., limitation of motion, pain, and numbness) while on active duty and since that time even when his records are negative for symptoms of or a diagnosis of a low back disability with radiculopathy. The examiner should also address the fact that the earliest post-service treatment note documenting complaint, treatment, or diagnosis with respect to the low back shows chronic pain and degenerative joint disease, which indicates that the Veteran had symptoms for some time prior to that treatment note. Moreover, the examiner should consider the April 2007 and January 2012 MRI results and whether the degree of degeneration is consistent with the Veteran's reported medical history and a diagnosis of degenerative joint disease in 1998. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. A complete rationale for any opinion advanced must be provided. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claim should be readjudicated. If any benefit sought is not resolved to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 6. Associate the Notice of Disagreement (NOD) to the December 2010 rating decision with the file and issue a Statement of the Case (SOC) in response to the Veteran's NOD with regard to the December 2010 rating decision granting service connection for coronary artery disease. This issue should only be returned to the Board if the benefit is denied and the Veteran perfects an appeal by filing a VA form-9 or other substantive appeal. The Veteran has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).