Citation Nr: 1307952 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-11 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of L5-S1 posterior interbody lumbar fusion and bilateral laminectomy (previously claimed as residuals of fractured spine). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from September 1984 to December 1991. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system reveals no additional pertinent documents for consideration in support of this claim. The appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND Prior to adjudicating this claim, additional development is necessary. See 38 C.F.R. § 19.9 (2012). During the course of this appeal, in June 2008, the RO afforded the Veteran a VA examination in support of his claim. As the representative alleges in an Appellate Brief Presentation dated February 2013, the report of this examination is inadequate to decide this claim. The physician's assistant/examiner who evaluated the Veteran ruled out a relationship between the Veteran's current back disability (characterized as status post L5-S1 posterior lumbar interbody fusion and bilateral laminectomy and microdiskectomy with residual dysesthesias over the L5-S1 nerve root) and his active service, during which he injured his back, on the basis that the in-service injury was an acute lumbosacral strain and the current back disability is a result of a September 2005 work injury. The examiner reportedly reviewed the claims file, but did not address all of the pertinent evidence of record. Rather, she focused on part of the evidence in the service treatment records (records of 1991 back injuries) and post-service treatment records dated since 2005, when the Veteran most recently injured his back. She mentioned but did not discuss the significance of April 1991 x-rays showing an old abnormality at L4 (characterized as a compression fracture, anterior portion L-4 body) and October 1991 x-rays confirming the old abnormality after the Veteran "jumped from 3rd story." In addition, she did not mention physicians' April 1991 findings of a questionable degenerative process and degeneration at L4. She also did not mention April 1993 and March 1999 reported medical histories of a fractured disc in the back during high school/in the 1980s or 1996 findings of another back injury and diagnosis of degenerative disc disease, including at L4. Finally she characterized the L4 degenerative changes as congenital with no explanation for doing so and did not indicate whether those "congenital changes" were aggravated during service secondary to the back injuries. Further medical discussion by an orthopedic specialist is therefore needed. With the inadequate opinion now of record, the Board is unable to determine whether the Veteran has another back disability - one affecting L4, not L5-S1 - which either preexisted service and was aggravated during service, or was incurred during service. The Board REMANDS this claims to the RO/AMC for the following action: 1. Ascertain if the Veteran has any further lay or medical evidence that is not presently in the claims file pertaining to the claim being remanded. Provide the Veteran with appropriate releases of information to obtain any evidence cited and advise him that he may submit such evidence on his own. 2. Transfer the Veteran's claims file to an orthopedist for a more comprehensive opinion in support of this claim. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be reviewed by the examiner who will acknowledge this review in his or her report. The examiner's attention is called to the following: i. April 1991 x-rays showing an old abnormality at L4 (characterized as a compression fracture, anterior portion L-4 body); ii. October 1991 x-rays confirming the old abnormality after the Veteran "jumped from 3rd story"; iii. April 1991 physicians' findings of a questionable degenerative process and degeneration at L4; iv. The Veteran's April 1993 and March 1999 reported medical histories of a fractured disc in the back during high school/in the 1980s; and v. Private medical records dated in 1996, which include findings of another back injury and a diagnosis of degenerative disc disease, including at L4. b. Contemplating this evidence, the examiner must express an opinion as to: (i) whether any current low back disability, including one affecting L4, is related to the Veteran's active service; or (ii) whether it preexisted service and worsened in severity beyond its normal progression during service. c. The examiner must also express an opinion as to whether any current low back disability affecting L4 is congenital. THE EXAMINER MUST PROVIDE AN EXPLANATION FOR ANY CONCLUSIONS REACHED, BASED UPON HIS OR HER MEDICAL KNOWLEDGE AND THE EVIDENCE IN THE CLAIMS FOLDER. 3. The RO/AMC and the examiner are advised that the courts of appellate jurisdiction (i.e., those that review Board decisions) have imposed increasing requirements in the obtaining and review of medical opinion evidence. The courts have directed that when VA (either the RO or the Board) obtains a medical opinion, it must be fully explained with specific reference to both medically and factually relevant evidence in the record. The courts have generally focused on the following questions: Whether the examiner showed a knowledge of the claimant's correct medical history; Whether the examiner provided a fully reasoned explanation, as opposed to a summary conclusion - the latter not being legally sufficient; Whether the examiner used clinical data (e.g., previous and current objective and clinical test results, laboratory findings, blood tests, etc.) in explaining his or her findings; Whether the examiner responded to the Board or the RO's inquiry; Whether the examiner cited to, and discussed other medical opinions of record; Whether the examiner discussed, as opposed to merely cited, his or her own expertise; specializations if any, and clinical experience. 4. The RO/AMC will review the examination report to ensure that it includes all requested information and, if not, return it to the examiner for correction pursuant to 38 C.F.R. § 4.2. 5. The RO/AMC will then readjudicate the claim on appeal based on all of the evidence of record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case. List the additional evidence the RO considered and identify the relevant actions the RO took and the evidence and applicable law and regulations it considered in support of the appeal. Allow an appropriate period of time for a response. Thereafter and subject to current appellate procedure, return this case to the Board for further consideration. The Board intimates no opinion as to the ultimate outcome in this case, but advises the Veteran that he has the right to submit additional evidence and argument on the remanded claim. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KELLI A. KORDICH 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).