Citation Nr: 1304501 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 96-05 310A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In an April 2009 Board remand, the long procedural history involving this case was reported in detail and will not be repeated here. At that time, the claim was remanded for additional evidentiary development, to include an examination to determine the etiology of the Veteran's current low back disorder. In March 2012, the Board remanded this claim for additional development. The claim has again been returned to the Board for further appellate consideration. Unfortunately, and for reasons explained below, however, the Board finds that it must once again remand the claim for service connection for additional development action. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. In June 2012, the Veteran was afforded a VA spine examination to determine the etiology of all current low back disabilities. During the examination the Veteran reported that while stationed at an Air Force Base in Niagara Falls, New York, a 55 gallon fuel barrel came loose and struck him in the back. Since that event, he functioned more or less normally, but had recurrent back pain. The examiner noted that during service, a diagnosis of chronic back strain was made with examination findings within normal limits. The examiner noted the Veteran had a diagnosis of lumbar strain and opined that the Veteran's current degenerative joint disease of the lumbar spine is less likely than not (less than 50/50 probability) caused by injury that occurred during service. The examiner's rationale was that there were no physical findings on physical examinations done during and immediately after military service. His back condition was associated with dysuria and groin pain, and also attributed to malingering at other times during military service. The Veteran describes an accident during military service that initiated his back complaints. But this is not described in the claims file and an initial compensation and pension examination indicates that the Veteran denied having had an injury leading to his back condition. In a June 2012 supplemental statement of the case, the RO continued the denial of the claim for service connection. Thereafter, in an October 2012 letter, the Veteran's attorney contends that the June 2012 VA opinion and rationale is without merit. She asserts that the examiner's argument is inconsistent. After a review of the rationale, the Board finds that the VA examiner has provided an inadequate rationale for his opinion. Initially, the June 2012 VA examiner stated that there were no findings on physical examinations done during service. Contrary to this statement, the March 2012 Board remand specifically noted that the Veteran's service treatment records (STRs) showed that he reported low back pain on several occasions during service with findings and diagnoses that included mixed-type apophyseal articulations between L5 and S1 in November 1970; low back pain in November 1970, February 1971, November 1971, December 1971, January 1972, and February 1972; chronic low back strain in March 1972. In December 1971, the Veteran was recommended to be cross-trained into a career field where he would not be required to actively use his back. Further, when hospitalized for a period of 19 days in January 1972 for groin pain and back pain, he was diagnosed with low back pain with unknown etiology. A report made in February 1972 noted the Veteran to have low back pain of one year's duration. In March 1972, the Veteran was noted to have chronic back strain. At that time it was noted that a medical board had considered the Veteran to be a malingerer. After a March 1972 psychiatric evaluation, the diagnosis was passive aggressive personality. Furthermore, within a year after discharge from service, the Veteran again complained of low back pain when he underwent a June 1972 VA examination. Although no orthopedic disease of the back was found, after a psychiatric evaluation, the diagnosis was anxiety neurosis with musculoskeletal reaction. Private medical records reflect treatment from June 1989 to June 1993 for complaints of low back pain with an impression of low back pain secondary to muscle spasms noted in April 1993. A history of low back pain since an April 1991 work related injury was also reported during this treatment. During a VA orthopedic examination conducted in October 2001 the Veteran said that he originally injured his low back while fueling aircraft in the service and he had been extensively worked up for this problem during service. He had been treated by numerous physicians for back complaints since service discharge. The Veteran was noted to have worked at numerous jobs since service and had sustained three separate back injuries as a civilian. The examiner opined that the Veteran's low back disability was most likely the result of injuries sustained after service and was not the direct result of the condition which existed during service. Also of record is a VA examination report from September 2004 with June 2005 addendum, as well as VA examination report from May 2011. These reports have also been found to be inadequate to address the question of etiology. Lastly, in her October 2012 statement, the Veteran's attorney contends that the nature of the Veteran's muscle strain to his low back in service left him susceptible to further injury. She cites to medical literature in support of this argument. In sum, she sets forth that the Veteran's 1991 work related injury that led to his diagnosed degenerative disc disease of the lumbar spine is the result of the weakened musculature of his lower back from his in-service back strain. In light of the above, the Board finds that a remand is again warranted to address the inconsistencies noted above and provide the Veteran an additional VA examination and opinion. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records pertaining to the Veteran's low back should be obtained and added to the claims folder. 2. Following completion of the above, schedule a VA examination, by an examiner with the appropriate expertise who, if possible, has not previously examined the Veteran, to determine the nature and etiology of any current low back disorder. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. The examiner should specifically attempt to reconcile the October 2001, May 2011 and June 2012 VA examiners' opinions. The examiner should clearly identify the Veteran's current low back disorders. For each diagnosed low back disorder, the examiner should opine whether the disability is at least as likely as not (50 percent or greater probability) the result of injury or disease incurred in or aggravated during the Veteran's service. In providing this opinion, the examiner is requested to comment on any diagnoses in the Veteran's VA or private medical records. In addition, a discussion of the Veteran's service treatment records should be included in the report. Such discussion should include consideration of the Veteran's attorney's citation to medical literature, noted above. In addition, the examiner should address the attorney's contentions that the Veteran's 1991 work related injury that led to his diagnosed degenerative disc disease of the lumbar spine is the result of the weakened musculature of his lower back caused by his in-service back strain. Citations to the record or relevant medical principles should be included as necessary to explain the examiner's opinion(s). The examiner must also consider the Veteran's statements regarding continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 3. Following completion of the above examination, review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Then, readjudicate the claim. If the benefit sought on appeal remains denied, the RO must furnish the Veteran and his attorney with a supplemental statement of the case and allow the appropriate time for response. Thereafter, the claim should be returned to the Board. 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). _________________________________________________ BARBARA B. COPELAND 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).