Citation Nr: 1301808 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-44 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1953 to May 1955. This case originally came before the Board of Veterans' Appeals (the Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, inter alia, denied the Veteran's claim for service connection for a back condition. The Board previously considered the appeal in February 2011. At that time, the Board denied the claim for service connection for back disorder, reopened a claim for service connection for a lung disorder, and remanded the issue of entitlement to service connection for a lung disorder. In September 2011, the RO issued a rating decision awarding service connection for dyspnea (claimed as lung condition) and assigned a 10 percent disability evaluation, effective from September 9, 2009. This action constitutes a full grant of benefits sought with respect to the claim for service connection for a lung condition. The record does not show that the Veteran has expressed disagreement with either the initial disability evaluation or effective date assigned. The Veteran appealed the denial of service connection for a back disorder to the U.S. Court of Appeals for Veterans Claims (Court). In March 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties which requested that the portion of February 2011 decision that denied entitlement to service connection for a back disorder be vacated and remanded. The appeal has now returned to the Board for further development. Please note 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 appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran claims that he has a back disorder incurred in service. In light of points raised in the JMR, and review of the claims file, the Board finds that further action on the claim on appeal is warranted. In the instant case, unfortunately, the Veteran's service treatment records (STRs) were among those presumably lost in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The AOJ informed the Veteran of such unavailability in July 2010. In November 2009, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed back disorder. Following a physical examination of the Veteran, an X-ray of the lumbar spine, and a review of the claims file, the VA examiner provided a diagnosis of degenerative disc disease and facet arthropathy at L4 to L5 and L5 to S1. The VA examiner concluded that the Veteran's back pain was the result of degenerative disc disease of the lumbar spine, which is frequently seen as part of normal aging. The examiner opined that the Veteran's degenerative disc disease did not originate from receiving traction treatment for a three week period in-service. The examiner further opined that it was less likely than not that the Veteran's degenerative disc disease originated from a back injury that may have been suffered in-service. There are no medical opinions to the contrary regarding the etiology of the Veteran's back pain. In the JMR, the parties stipulated that the November 2009 is inadequate. The JMR noted that the November 2009 Board failed to provide an adequate reasons as to why the examiner's rationale was adequate to support the medical opinion. Though the examiner opined that it was less likely than not that the Veteran's degenerative disc disease originated from a back injury that may have been suffered in-service, the examiner offered no rationale for this opinion beyond stating that degenerative disc disease was frequently seen as a normal part of aging. The examiner did not give a definite opinion relating the Veteran's back disorder to the natural aging process. The examiner further complicated the opinion by stating that "it is possible these could be related to his spin injury" and then stating that it was less likely as not. The Board finds another VA examination is necessary in order to obtain a detailed rationale to support the medical opinion, to include specific facts, evidence, and medical principles relied upon to support the medial opinion. 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Finally, while on remand, updated treatment records must be obtained. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names and addresses and dates of treatment of all medical care providers, VA and non-VA, that have provided any treatment pertinent to his back disorder claim. After the Veteran has signed the appropriate releases, those records not already in the claims file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow his the opportunity to obtain and submit those records for VA review. 2. 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 should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issue on appeal and are not duplicative of those already found in the paper claims file, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein. 3. The Veteran should be scheduled for an appropriate VA examination to ascertain the nature and etiology of his claimed back disorder. It is imperative that the claims folder be reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished and all special tests and clinical findings should be clearly reported. Prior to the examination, the claims folder and a separate copy of the Remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should provide an opinion or comment as to whether it is at least as likely as not (50 percent probability or higher) that any current back disability is causally related to any event or incident in service. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. All applicable laws and regulations should be considered. If the benefit sought remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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. 2012). _________________________________________________ DAVID L. WIGHT 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).