Citation Nr: 1309971 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 12-04 161 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel' INTRODUCTION The Veteran had active service from February 1977 to November 1983. He also had periods of service with the Naval Reserves in the years thereafter. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the VARO in Atlanta, Georgia, that denied entitlement to the benefit sought. The appeal is REMANDED to the RO by way of the Appeals Management Center (AMC), in Washington, D.C. VA will notify the veteran should further action be required. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claim of entitlement to service connection for a low back disability. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to a claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veteran contends he sustained a low back disability during his active service. He asserts the back was hurt when he was on active duty in San Diego, California, while playing basketball. He claims he was taken to the hospital and placed on duty restriction. Unfortunately, a November 2010 communication from the National Personnel Records Center in St. Louis reflects the Veteran's military personnel record is not available. The Veteran's military health record is not available there either. The record does reveal reports of periodic medical examinations in conjunction with Naval Reserve service are available. They do not support the Veteran's contentions of ongoing back problems since his active service. Of record is a May 2009 communication from R. D. C., M.D. He stated he had been treating the Veteran for essentially nine years since 2000. He reported the Veteran started treatment for back problems in 2000 and had undergone surgery as recently as February 2008. The physician stated that "based upon his current condition, it is as likely as not that [the Veteran] back condition is a direct result of his military services." Elaboration was not provided and it does not appear the physician had access to the Veteran's military records. The Veteran was accorded a spinal examination by VA in January 2010. He gave a history of sustaining an injury while playing basketball when a fellow player pulled him backward and he felt immediate pain and popping in the right back area. He said he was seen at a service department hospital for X-ray studies, given medication, and followed up with physical therapy. He underwent back surgery in 2004 and again in 2008 for stabilization of different lumbar segments. It was reported the Veteran was seen at the "Houston Clinic" in 2003 to 2004 and 2008 for the back procedures. Following current examination, diagnoses were made of: Lumbar degenerative joint disease with degenerative disc disease, L2-L5 levels, status post surgical intervention; and lumbar radiculopathy of the left lower extremity. In response to the question as to whether a medical opinion was requested, the examiner said it was not. The Board is not clear as to why an opinion was not sought from the examiner. In order to give the Veteran every consideration with respect to the present appeal and to ensure due process, further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be asked to provide the names of all healthcare providers, both VA and private, who have treated him for a low back disability since separation from active service in 1983. Of particular interest is any information from the Houston Clinic in Columbus, Georgia. The Veteran should be asked to explain why he did not refer to back problems at the times of his periodic Naval Reserve examinations in the 1990's and early 2000's. 2. Contact the VA examiner who conducted the January 2010 VA examination and have her indicate whether it is at least as likely as not (50 percent probability or more) that the current low back disability is related to the Veteran's active service. Any and all opinions expressed must be accompanied by a complete rationale. The claims file must be reviewed in conjunction with the opinion, and this opinion should include review of the reports of periodic examinations in the Navy Reserves during the years following active service. If the healthcare provider cannot respond without resorting to speculation as to etiology, she should so indicate and explain the reason why such an opinion would be too speculative. If she is no longer available to respond to this inquiry, then another comparably qualified examiner may answer in her place. Another orthopedic examination of the Veteran is authorized, if deemed advisable, for the purpose of obtaining an opinion as to whether it is at least as likely as not that any current back disability is related to the veteran's active service. 3. The RO should also undertake any other development it determines to be warranted. 4. Then, VA should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, VA should furnish him and his representative a Supplemental Statement of the Case and afford them the requisite opportunity for response. Thereafter, the matter should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, The Board intimates no opinion, either legal or factual, as to any final outcome warranted. 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. 2010). _________________________________________________ KELLI 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).