Citation Nr: 1311115 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-11 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disorder, to include herniated nucleus pulposis at L5-S1. 2. Entitlement to service connection for a left leg disorder, to include sciatica as secondary to a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision drafted by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and issued by the RO in Denver, Colorado. In February 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In March 2013, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the Veteran reports attempting to minimize his in-service back symptoms and refraining from seeking formal care for his back problems during service, the service treatment records show that in August 1979 he was seen for complaints of back problems that had persisted for two months. He was again seen during service for treatment of back problems in December 1983. The Board notes that the May 2012 VA examiner provided a negative nexus opinion in which she relied in part on the Veteran's statements to his treating VA physicians in May 2005 and August 2005 that his back pain had its onset in 1999 or 2000. (Specifically, the Veteran told the August 2005 VA physician that his back pain began in 1999 or 2000, and told the May 2005 VA physician that his significant back pain began in 1998 or 1999.) However, the opinion is inadequate because the examiner did not discuss why she found those statements more credible than the Veteran's August 2004 statement to a VA clinician that he has had back problems since 1984, or why she found them more credible than the Veteran's December 2005, May 2006, and October 2006 statements to VA clinicians that he has had back pain since childhood. Additionally, after the May 2012 examination, the Veteran competently testified at his February 2013 videoconference hearing that he had no back problems before going into the military, that he first injured his back in service in 1979 and 1983 (as documented in his service treatment records), and that he has had chronic and recurrent back problems since service. See transcript, pp. 3-4, 8-9. On remand, the examiner should review the Veteran's in-service and post-service treatment records and interview the Veteran, and then provide an opinion as to whether it is at least as likely as not that the Veteran's current back disorder is related to service. The examiner should also state the likelihood that any low back disorder found to be present existed prior to service. If the examiner concludes that any low back disorder found to be present existed prior to service, the examiner should indicate the likelihood that the disorder worsened during or as a result of service. Also, as the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records, including records from the VA facility in Hot Springs, South Dakota, dated from 1999, as identified by the Veteran at his videoconference hearing at p. 11, should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The AOJ should also obtain the Veteran's records from the Social Security Administration (SSA), which he identified at his videoconference hearing. See transcript, pp. 12-13; see also Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Board notes that the May 2012 VA examiner characterized the Veteran's left leg disorder as symptoms of lumbar radiculopathy. As such, the Veteran's claim for service connection for a left leg disorder must be remanded as it is inextricably intertwined with the issue of entitlement to service connection for a low back disorder. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his claimed disabilities that are not already of record, including records from the VA facility in Hot Springs, South Dakota, dated from 1999. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. The RO should contact the SSA and obtain any pertinent records. 3. The RO should notify the Veteran that he may submit lay statements of the nature and onset of his low back disorder symptoms from himself as well as from other individuals who have first-hand knowledge of such symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 4. After associating all outstanding records regarding the Veteran's low back disorder with the claims folder, afford the Veteran an appropriate VA examination. The examiner must identify all back disabilities found to be present. Thereafter, the examiner should respond to the following questions: a) What is the likelihood that any low back disorder diagnosed on or after October 11, 2006 existed prior to service-i.e., prior to March 25, 1977? b) What is the likelihood that the low back disorders that existed prior to service, if any, were aggravated during or as a result of service? c) Are any of the Veteran's low back disorders diagnosed on or after October 11, 2006 related to or had their onset in service, including to the August 1979 or December 1983 documented findings of low back pain in service? In responding to the above inquiries, the examiner must accept as true that the Veteran had back problems in service and has had recurrent back problems since that time. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. All findings and conclusions should be set forth in a legible report. 5. Then, after providing the Veteran adequate time to respond, and after conducting any further development deemed warranted, readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ STEVEN D. REISS 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).