Citation Nr: 1306572 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 05-34 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to December 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for a lumbar spine disability. In September 2006, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In August 2007, the Board remanded the Veteran's low back claim for additional development. Thereafter, in a March 2008 decision, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued a January 2009 Order granting a Joint Motion to Remand. The case was then returned to the Board, which again remanded the claim for further development consistent with the terms of the Joint Motion. As a final introductory matter, the Board notes that, in September 2012, the Veteran's attorney filed a motion for a 30-day extension to submit additional clinical evidence in support of the appeal. While that motion was granted, no additional treatment records or medical opinions were received. The 30-day evidentiary window has now expired and, thus, appellate review may proceed. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Throughout the pendency of this appeal, the Veteran has argued that his current lumbar spine problems had their onset in service, when he tripped over a couch and fell, injuring his lower back. The Veteran's account is corroborated by his service treatment records, which show that in September 1985 he sought medical attention for discoloration, pain, and swelling in his lower back and was diagnosed with a lumbar contusion. Significantly, however, those service treatment records also show that, on a pre-discharge examination conducted in November 1985, the Veteran denied any current low back problems and none were clinically shown. Notwithstanding the lack of pertinent complaints or clinical findings on separation, the Veteran now maintains that he has experienced chronic low back problems since leaving the military, which have progressively worsened over time. His contentions are supported by a January 2004 opinion from a VA physician who, after treating the Veteran and reviewing his service treatment records, concluded that he met the diagnostic criteria for mild lumbar spine scoliosis, which was more likely than not related to in-service trauma. Significantly, however, that VA treating physician's opinion was rebutted by a June 2004 VA examiner, who conducted a thorough review of the Veteran's claims file and determined that there was insufficient evidence to warrant a current lumbar spine diagnosis. The Board relied on the June 2004 VA examiner's opinion in its initial denial of the Veteran's claim. Nevertheless, the parties to the Joint Motion later agreed that this opinion was inadequate because it failed to consider the previous lumbar spine diagnosis and contemporaneous X-ray evidence. The record thereafter shows that the Veteran was afforded a follow-up VA examination in September 2009, which yielded clinical findings of chronic lumbar sprain with spondylosis, foraminal narrowing, and minimal degenerative disc disease. However, the September 2009 VA examiner determined that none of those current conditions was related to the Veteran's service. As a rationale for that opinion, the VA examiner noted that, after leaving service, the Veteran had experienced a period of "no significant discomfort" and that his current back problems had not started until he began doing "heavy work" as a civilian bricklayer, factory worker, and mechanic. The Board, in its December 2010 remand, sought clarification of the September 2009 VA opinion. Specifically, the Board requested that the examining VA clinician reconcile the finding of "no significant discomfort" with the Veteran's reported history of "morning stiffness" in his lower back, persisting since service. The Board also requested that the September 2009 VA examiner take into consideration the Veteran's VA medical records and the other pertinent evidence obtained on remand, most notably his Social Security Administration (SSA) records. Pursuant to the Board's remand, the September 2009 VA examiner reviewed the Veteran's claims file and rendered a March 2012 addendum opinion, which reaffirmed that the Veteran's current low back pathology was less likely than not service-related. In so finding, the VA examiner acknowledged the Veteran's 2004 complaints of "morning stiffness," but observed that this was most likely a symptom of early-stage lumbar degenerative disc disease, rather than a continuation of in-service low back problems. As a rationale for that negative addendum opinion, the VA examiner relied upon the lack of low back evidence shown at separation. Significantly, however, the examiner did not reconcile his opinion with the other pertinent evidence that favors the Veteran's claim. Indeed, as noted by the Veteran's representative in argument dated in May 2012 and October 2012, the VA examiner did not address the September 1985 in-service diagnosis of lumbar contusion. Nor did the examiner comment on the January 2004 VA treating physician's opinion, which related the Veteran's documented in-service trauma to his subsequent development of scoliosis. The VA examiner also did not discuss the Veteran's SSA records, which are replete with X-ray findings of degenerative disc disease and progressive degenerative arthritis. As noted by the Veteran's representative, those SSA records also contain a March 2011 statement from a private physician (Dr. H.C.), indicating that the Veteran quit work in 2007 due to a history of chronic low back problems. In light of the foregoing, the Board finds that an additional addendum opinion is warranted with respect to Veteran's appeal. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced); see also Stegall v. West, 11 Vet. App. 268 (1998) ( noting, inter alia, that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Also, as it appears from a review of the Veteran's Virtual VA file that he is continuing to seek VA treatment for low back problems, the Board finds that, on remand, his most up-to-date VA medical records should obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant treatment records from the VA Medical Center in Little Rock, Arkansas, dating since March 2012. 2. After the above development has been completed, forward the claims file to the physician who conducted the September 2009 VA examination and issued the March 2012 addendum opinion, if available. Ask that examiner to review the entire claims file, including the evidence added since the last examination, and to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current lumbar spine disability, or any other low back condition diagnosed since he filed his initial claim for VA benefits in January 2004, is related to his active service, to include the lumbar contusion therein. In rendering this opinion, the examiner should expressly address the September 1985 service treatment records, documenting complaints of lower back pain, swelling, and discoloration and clinical findings of lumbar contusion, as well as the January 2004 VA treating provider's assessment of lumbar scoliosis related to in-service trauma. The examiner should also consider the Veteran's SSA records, which include X-ray findings of degenerative disc disease and progressive degenerative arthritis and the statement from the private physician (Dr. H.C.) indicating that the Veteran quit work in 2007 due to a history of chronic low back problems. Finally, the examiner should address the lay evidence of record regarding contentions of continuous low back problems since service. A complete rationale for all opinions expressed should be provided. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified orthopedic physician. 3. 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 attorney should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify the Veteran if further action is required on his part. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. A. BANFIELD 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).