Citation Nr: 1307443 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-14 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from September 1969 to September 1971 and from May 1972 to July 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2010, the Board remanded this matter for additional development. 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 Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Initially, the Board observes that following the July 2010 Board remand and August 2010 VA examination and October 2010 addendum, the Veteran was never issued a supplemental statement of the case (SSOC). The evidence received since the prior October 2008 SSOC is non-duplicative of the evidence already of record and relevant to the claim at hand. See 38 C.F.R. §§ 19.31, 19.37 (2012). The absence of a Supplemental Statement of the Case constitutes a procedural error requiring a remand. See 38 C.F.R. § 19.9 (2012). The Board notes that it has reviewed the Veteran's electronic (virtual) file as well as the paper claims file, but is unable to locate an SSOC dated after the Board's July 2010 Remand. The Veteran submitted a letter in 2011 in which he stated that he was responding to the SSOC, but he did not indicate when the SSOC he was responding to was issued. In the November 2010 Remand, the Board instructed the RO, in pertinent part, that if evidence obtained pursuant to the remand supported the Veteran's assertions that he manifested back pain proximate to service of chronically for many years, to afford the Veteran an examination and medical opinion. The examiner was to review the claims file in connection with the examination and opine whether it is at least as likely as not that the Veteran's current back disorder is causally or etiologically related to service. The Board had noted that service treatment records showed that the Veteran was treated in April 1975 for lumbar strain and that the Veteran had had lower back pain since 1972. In addition, it was noted that the Veteran had been "seen several times before with the same thing." In August 2010, a VA examination and opinion was obtained. The VA examiner noted that the claims file was not requested by the VARO. Thus, it appears that the VA examiner did not have the claims file for review at the time of examination and in conjunction with the opinion. She noted that the Veteran reported having low back pain since 1972 when he was lifting something at Fort Campbell, Kentucky. The Veteran asserts that he has had this pain for almost 30 years. MRI results from September 2009 and EMG results from September 2010 were noted in the examination report. The diagnosis was chronic low back pain. The examiner opined that she could not resolve the issue as to etiology and the relationship of the Veteran's low back disorder to service without resort to mere speculation. While a VA examiner may state that an opinion cannot be reached without resorting to speculation, the examiner must provide a rationale for his or her inability to render an opinion, that is, identify why speculation is required. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). In this case, the basis for the examiner's inability to render an opinion is not clearly apparent, although the comment that the Veteran reported that there was no record of his back pain during the 30 years that elapsed after his service implies that this lack of records may be the reason for speculation. The examiner also concluded that while EMG studies suggest previous damage to either the right sciatic nerve or the right S1 nerve root, there is "no proof that this was due to military service." Again, the basis for this opinion as well as the adequacy of the opinion is in question. Specifically, the VA examiner did not have the claims file for review at the time of the 2010 opinion and failed to provide any rationale for the negative opinion. Thereafter, in October 2010, it appears that the claims file was forwarded to the August 2010 VA examiner and she noted in an addendum that the claims file was reviewed. However, she did not provide any further discussion of her opinion in light of the availability of the Veteran's service treatment records, the notations in service, and the Veteran's medical records and personnel statements of record, to include the Veteran's contentions of continuity of symptomatology. No additional rationale appears in the 2011 addendum after review of the records. The opinions of record are inadequate for the purpose of determining whether the Veteran's has a low back disorder related to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Once VA undertakes the effort to provide an examination when developing a service-connection claim, VA must provide an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). It is possible that additional records of the Veteran's 2008 VA back surgery would provide additional evidence. For example, the Board is unable to locate the history and physical examinations conducted by the Veteran's surgical team prior to the procedure. More complete VA records should e obtained. In October 2008, the Veteran stated that "The surgeon put a comment on my records." It appears that the Veteran wants to have this comment considered. However, the records of the Veteran's 2008 VA surgery are brief. The board is unable to find the "comment" that the Veteran requested be obtained. The Veteran should be asked to better identify the "comment," or the Veteran and his representative should be afforded another opportunity to determine if the records of the 2008 surgery which have been associated with the claims file are complete. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). In light of the foregoing, the Veteran must be afforded a new examination and opinion to determine the nature and etiology of any diagnosed back disorder. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be specifically notified that records of his 1988 VA treatment at the Cincinnati VA Medical Center were unavailable, since it is not clear that the SSOC which would have notified the Veteran of this information has been sent. Afford the Veteran an opportunity to identify or submit any alternative evidence which would be relevant to support his assertion that he has had back pain since service, to include evidence that he purchased or used a back brace, statements of individuals he worked with, employment medical records, or the like. 2. Afford the Veteran an opportunity to identify more specifically the "comment" made by a provider that the Veteran identified in 2008 or afford the Veteran an opportunity to review his claims file to determine if this evidence has been obtained. 3. Associate more complete records of the Veteran's 2008 VA back surgery with the claims file, to include the history and physical examinations prior to the surgery. 4. Arrange for the Veteran's complete record to be reviewed by a physician (M.D.) with the appropriate expertise, to determine the etiology of any diagnosed back disorder. The entire claims file, to include a complete copy of this REMAND, must be made available to the reviewer, and the report should include discussion of the Veteran's documented medical history and assertions. The reviewer should note review of the Veteran's service treatment records, especially an April 1975 record, and the Veteran's October 2011 statement, as well as his other lay statements. If examination or diagnostic tests and studies are required, the reviewer should so state, and any necessary examination(s) should be accomplished (with all results made available to the examiner prior to the completion of his or her report). After reviewing the claims file, the reviewer/examiner should clearly identify any diagnosed back disorder(s), to include those made at any point during the pendency of this appeal, and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed back disorder began during or it etiologically related to the Veteran's active service from 1969 to 1971 or 1972 to 1975. In providing this opinion, the reviewer/examiner is requested to comment on the findings in the Veteran's service treatment records. The examiner should also reconcile his or her opinion with the opinion expressed in the reports of the August 2010 VA examination and the addendum reflecting review of the claims file. The reviewer/examiner must consider the Veteran's statements regarding the incurrence of low back symptoms during service, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. If the reviewer/examiner cannot resolve the question posed above without speculation, a thorough explanation should be provided as why this is so, with an explanation of what additional information would be necessary to render an opinion without speculation. In any case, all opinions and conclusions expressed should be supported by a complete rationale. 5. To help avoid future remand, ensure that the requested opinion is responsive to the questions in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. Then, readjudicate the claim for service connection for a back disorder. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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). _________________________________________________ Tresa M. Schlecht Acting 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).