Citation Nr: 1305264 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-37 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include as due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from June 2004 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran appeared and testified at a personal hearing in November 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. 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 After a review of the record, the Board has concluded that a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. In September 2006, the Veteran was involved in a parachute accident which resulted in a fractured pelvis, left knee injury, left shoulder injury, and a head injury. The Veteran contends that his current back pain is a result of a disability which developed either (1) as a result of the September 2006 injury, or (2) as a result of an altered gait due to his service-connected left knee and pelvis injuries. The claims file does not currently include a diagnosis of a low back disorder. Private and VA examiner opinions address the Veteran's "back pain;" however, pain is a symptom and not a diagnosis. The Board points out that pain is not a disability for which service connection can be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability."). The Board finds the Veteran's statements regarding the severity of his pain to be credible, but they are insufficient to establish the presence of a disability. VA treatment records indicate that a private CT scan was performed prior to December 2009 and that the VA provided an MRI in February 2010. These diagnostic records are not contained in the claims file, nor did VA examiners indicate that they were reviewed in conjunction with the 2009 and 2010 VA examinations. On remand, attempts should be made to obtain the private CT and the February 2010 VA MRI should be obtained. The claims file currently contains conflicting nexus opinions. The August 2010 VA examiner noted that the Veteran complained of back pain in service, but that x-rays were unremarkable. The examiner also noted that the Veteran did not complain of chronic back pain until after discharge from service. The examiner opined the Veteran "back pain" was less likely than not related to service as his chronic back pain did not begin until after his discharge from service. The August 2010 VA examination report did not include an opinion regarding his secondary service-connection claims. The Board notes that service connection is permissible for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). As such, the August 2010 VA examiner's rationale is incomplete as a disability can begin after discharge from service and still be related to or caused by service. The Veteran was additionally afforded a VA examination in September 2009. The examiner opined that it was less likely than not the Veteran's "back pain" was caused or aggravated by his service-connected left knee disorder. The examiner's rationale was that the Veteran's back pain began with a sudden acute episode and did not represent a gradual progression secondary to another condition. The examiner noted the Veteran's problems correlated with a lifestyle change-to a full-time student. The opinion did not address direct service connection, and did not address the Veteran's in-service complaints of back pain. The private positive nexus opinions note that the Veteran's "back pain" is at least as likely as not a result of his in-service injury and his pelvic and left knee injuries. Unfortunately the positive opinions do not include a diagnosis of a lumbar spine disability. On remand, the Veteran should be afforded an additional VA spine evaluation. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of this claim, to specifically include a private CT scan report performed in 2009 and any other private imaging studies which have not been provided to the VA. Based on his response, the AMC (Appeals Management Center) must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the AMC must obtain all relevant VA medical records pertaining to the Veteran, to include the February 2010 MRI report. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the Veteran must be afforded a VA examination to determine whether any diagnosed low back disability is related to his military service or any service-connected disability. In providing the opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. The claims file and all records on Virtual VA must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated testing must be conducted. Following a review of the evidence of record, an examination of the Veteran and with consideration of the Veteran's statements and any lay statements of record, the examiner should indicate if the Veteran suffers from a current low back disability. If so, the examiner must express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's currently diagnosed low back disability is related to his period of active service or any incident therein. In reaching this conclusion, the examiner must discuss the significance, if any, of the Veteran's complaints of back pain in service and of his September 2009 hospitalization following a parachute accident. If the examiner determines the Veteran does not suffer from a low back disability as a result of his service, to include his September 2009 parachute accident, then the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) his service-connected fractured pelvic or left knee caused or aggravated his low back disability. The examiner must provide a complete rationale for all opinions expressed. 3. Notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Thereafter, the AMC must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the claims. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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).