Citation Nr: 1303145 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 08-08 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative joint disease with spinal stenosis and foraminal narrowing, L4/5 and L5/S1. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1969, and from December 1975 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. In February 2012, the Board remanded the claim so that the Veteran could be scheduled for a requested hearing. That hearing was held in June 2012 before the undersigned Veterans Law Judge. A copy of the transcript is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Upon review, the Board finds that further development is required prior to adjudicating the Veteran's claim for service connection for degenerative joint disease with spinal stenosis and foraminal narrowing, L4/5 and L5/S1. Specifically, additional records development is needed and the Veteran should be provided with another VA examination. At the June 2012 Board hearing, the Veteran testified that while aboard the USS Simon Lake, he was responsible for transporting engine components from the engine room up three decks. The Veteran explained that the engine components, weighing approximately 13 to 90 pounds, were placed on his shoulder as he climbed a ladder up the decks. One occasion in 1977, the Veteran indicated that he moved two components up the ladder, but a third one did not make it, causing injury to his back. The Veteran stated that he received physical therapy, was placed on bed rest, and remained hospitalized for approximately three to four weeks. He was placed in the medical barracks and discharged from service shortly thereafter. Since that time, the Veteran has reportedly endured constant back problems, and has asserted that his current low back disability is attributable to his active military service. The Board notes that the Veteran is currently service-connected for chronic low back strain with postural defect. Service treatment records reflect complaints, treatment, and diagnosis of a low back disability. Specifically, in March 1977, the Veteran was admitted to the Naval Research Medical Center (NRMC) in Charleston, South Carolina, for a worsening of the pain in his back without radiation. Physical examination testing revealed no spasm to the back and full flexion to the floor. Deep tendon reflexes were 2+ and knee jerk, ankle jerk, and motor and sensory testing were negative. X-rays were normal and rectal examination testing was normal. The Veteran was diagnosed with low back pain, etiology unknown. He was placed on bed rest and a strict diet. While the physician noted that the Veteran showed gradual improvement, he was deemed unfit for full duty and was transferred to the Medical Holding Company due to limitations of no lifting, standing, sitting, or climbing for greater than five minutes. By May 1977, service treatment records note that the Veteran's back symptoms had remained unchanged, and he was placed on a weight reduction program. Examination testing noted an obese Veteran demonstrating full range of motion in the back with pain in the lower back. It was recommended that he be administratively discharged due to obesity. Post service treatment records reflect continuing complaints and treatment for a low back disability. In December 2001, a T10, T11 partial laminectomy with left medial facetectomy and resection of synovial cyst was performed by a private physician. Thereafter, in January 2006, VA outpatient treatment records note that the Veteran underwent an L5 laminectomy and bilateral L5/S1 foraminotomies. The Veteran was diagnosed with neural foraminal stenosis at lumbar 5 bilaterally. In April 2006, a VA examiner assessed the Veteran with status post laminectomy L5 with bilateral L5-S1 foraminectomy to correct spinal stenosis and chronic lumbosacral strain. The VA examiner concluded that the Veteran's status post laminectomy L5 with bilateral L5-S1 formainectomy to correct spinal stenosis was not related to his service-connected lumbosacral strain, but rather due to "body habitus, occupation, etc.[]" In a June 2006 addendum opinion, the VA examiner further added that there was no scientific evidence that low back strain could cause or aggravate degenerative joint disease or spinal stenosis. Although the Veteran was afforded a VA examination in April 2006 to ascertain the etiology of his claimed back disability, the VA examiner failed to provide an opinion as to whether the back disability is related to the Veteran's military service, namely the claimed 1977 back incident described by the Veteran at the Board hearing and documented hospitalization in March 1977 as reflected in his service treatment records. Given the Veteran's contentions of an in-service injury and the indication of a disability related to an old injury, the Board finds that an additional VA examination addressing the etiology of the current back disorder is "necessary" under 38 C.F.R. § 3.159(c)(4) (2012) in this case. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (the threshold for finding a link between a current disability and service is low). Finally, additional records development is also warranted. During the June 2012 Board hearing, the Veteran testified that he received treatment for his back disability at the Lakeland VA outpatient clinic earlier in 2012. The Board notes that since VA has notice of outstanding potential relevant records, VA has a duty to obtain those records. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (2012). Additionally, VA records are considered part of the record on appeal since they are within VA's constructive possession. Because VA has notice of the existence of additional VA records, they must be retrieved and associated with the other evidence already on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). The Veteran also testified to receiving treatment for his back disability by Dr. John Amann in the 1990s. The Board notes that the Veteran submitted private medical records from Dr. Amann dated 2001 and 2002; however, the completed records from Dr. Amann were not previously identified to VA and have not been obtained. On remand, the Veteran should be asked to provide authorization for VA to obtain these records and to identify and authorize VA to obtain any other outstanding, relevant treatment records. Attempts should be made to obtain any identified records. See 38 C.F.R. § 3.159(c), (e) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding records of treatment pertaining to the Veteran's claimed back disability from the Lakeland Community-Based Outpatient Clinic in Lakeland, Florida. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. Ask the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include records from Dr. John C. Amann. After securing the necessary authorization, these records should be requested. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 3. After the above has been accomplished to the extent possible, schedule the Veteran for a VA orthopedic examination to determine the etiology of the Veteran's degenerative joint disease with spinal stenosis and foraminal narrowing, L4/5 and L5/S1. All appropriate testing should be conducted, and all pertinent disabilities associated with the back found to be present should be diagnosed. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that degenerative joint disease with spinal stenosis and foraminal narrowing, L4/5 and L5/S1 arose during service or is otherwise related to service. A rationale for all opinions expressed should be provided. 4. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and be given the opportunity to respond thereto. 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). _________________________________________________ JOHN Z. JONES 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).