Citation Nr: 1311512 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-46 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from June 1966 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2012, the Veteran and his wife testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Service medical records show that August 1967, the Veteran fell down a flight of stairs causing initial trauma while on leave. From October to December 1967, he was seen with complaints of low back pain while in Thailand. He was transferred to the United States Air Force Hospital in Tachikawa. In January 1968, a lumbosacral cast was applied for six days. X-rays were taken after the cast was removed in January 1968. The impression was spondylolisthesis, perhaps related to his back pain, but other documents noted as due to old trauma, and that he may have herniation of central disc, L4-L5, L5-S1, due to unknown causes. The Veteran was then evacuated to the United States by air for further treatment at Kessler Air Force Base. The January 1968 admission record from United States Air Force hospital at Kessler Air Force Base shows that the Veteran had low back pain with flexion. X-rays revealed no significant abnormalities and a lumbar myelogram was normal. Physical examinations continued to show limited flexion to about 50 percent of expected normal for the Veteran's age. The final diagnosis was strain, lumbosacral, chronic, manifested by mild limitation of motion of the back. In April 1968, the Veteran was put on a permanent physical profile for chronic back pain and assigned a PULHES of 3 for L. The PULHES profile indicates the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The L is indicative of lower extremities. Odiorne v. Principi, 3 Vet. App. 456 (1992). A May 1968 record notes that the Veteran has a history of back problems and was lifting boxes the day before. He could not bend or lean over. The impression was muscle spasm. On separation examination in March 1970, the Veteran's spine was evaluated as clinically normal. On contemporaneous self-report of medical history, the Veteran check off that he had recurrent back pain. The examiner noted that the Veteran had back strain in 1967 that was treated with support and body cast. In April 2009, the Veteran underwent a VA examination. The Veteran reported that he had no treatment for thirty-eight years for his back because he became used to the problem over the years. The diagnosis was lumbar spine degenerative joint disease (DJD) mechanical low back pain. The VA examiner opined that it was less likely than not that the current symptoms and signs of DJD mechanic low back pain were related to, caused by, or permanently aggravated by service. The examiner noted that service notes were reviewed. The Veteran had a prolonged hospital stay, but a normal myelogram and normal separation examination. He had 38 years with no visits and no symptoms were records. In the 1980 a chiropractor was needed for 6 months for a back condition. And, the Veteran had age-related changes on recent spine X-ray of no significance. In a July 2009 letter, the Veteran's private physician, S. E. Dickman, M.D., reiterated the Veteran's medical history in service and that the Veteran reported that his low back pain had been the same as when he injured it back in 1968, and had steadily started to worsen over the last two years. Based on the Veteran's history, Dr. Dickman stated that it appeared that had been a chronic thing in nature. Dr. Dickman believed there was a possibility of at as likely as not that was at least contributed to by the Veteran's activities in the military. August 2009 statements from prior co-workers noted in the 1970s and 1980s that they observed the Veteran twisting and unable to stand or sit for any extended periods of time. He told one person, almost daily, that his back was tired. In August 2010, the Veteran underwent a VA spine examination. At that time, the VA examiner noted a review of the claims file. The Veteran reported that the onset of his back problem was in August 1967. The diagnosis was lumbar spine DJD. The VA examiner opined that the Veteran's current lumbar spine DJD was less likely as not (less than 50/50 probability) caused by, a result of, or related to the treatment for his back during military service and more likely related to some other etiology. Evidence the examiner considered and reviewed included the Veteran's service records, private and VA medical records, physical examination, the Veteran's statements, and her 19 years of medical experience. The examiner's rationale was based on a normal lumbar myelogram, a normal spine at separation examination, and the fact that the Veteran never sought any medical care for his back for the next 38 years. The examiner found no nexus to his earlier back complaints. In an April 2012 letter, a VA physician's assistant noted that an MRI of the lumbar spine showed L5-S1 diffuse disc bulge with right central protrusion that indented the dural sac with mild central stenosis. The physician's assistant stated that one of the documents reviewed, dated in August 1968 indicated a diagnosis of spondylolithesis due to trauma, and that the patient had a bad fall down a flight of stairs while on leave and herniation of nucleus L4-L5, L5-S1 due to unknown cause. Since the Veteran's low back pain has been documented in military records, it was difficult to determine if there is a correlation with the military time and his pain at that time. That back pain occurred in 1968, and over the intervening 40 years, no significant records of therapy or other treatment had been noted. During the April 2012 Board hearing, the Veteran's representative stated that while the Veteran had no history of medical treatment for his back for 38 years, he did not seek medical attention for anything during that period. He was not the type of person to go to the doctor. The representative asserted that despite the fact that the Veteran did not seek medical treatment from the time he left service until 2008, he suffered continuously from low back problems, as demonstrated by symptoms of low back pain, which were observed by people who knew him. The Veteran testified that on separation he was not provided an actual physical examination, just was asked questions and the examiner made check marks. He did not want to say a lot about his back because he just wanted to get home. He testified that he had back pain from the time he was in service and that he just never saw a doctor. In this case, the April 2009 and August 2010 VA examiners did not consider the lay evidence provided by the Veteran, his former colleagues, and his wife, which asserted a history of chronic back problems dating back to his active service. In not addressing that lay evidence regarding a continuity of symptomatology, those VA opinions are inadequate for the purposes of adjudicating the Veteran's claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, in the April 2012 letter, the VA physician's assistant references an August 1968 service medical record that indicated a diagnosis of spondylolithesis due to trauma, patient had a bad fall down a flight of stairs while on leave and herniation of nucleus L4-L5, L5-S due to unknown cause. However, the Board is unable to locate that record. On remand, the Veteran should be requested to submit the August 1968 record relied upon by the physician's assistant. The Board also notes that private medical records associated with the claims file suggest that there are outstanding medical records that might be pertinent to the matter on appeal. It appears that the Veteran was previously treated by physicians at North Suburban Medical Associates in Lake Bluff, Illinois Accordingly, the case is REMANDED for the following actions: 1. Send to the Veteran and his representative a letter requesting that he provide sufficient information and authorization to enable VA to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Specifically, records should be sought from North Suburban Medical Associates in Lake Bluff, Illinois, and the chiropractor that the Veteran referred to during the April 2009 VA examination as having treated him in the 1980s. In addition, the Veteran should be requested to submit a copy of the August 1968 service medical record that the VA physician's assistant referenced in her April 2012 letter. 2. Obtain the Veteran's treatment records from the Tomah VA Medical Center, dated from March 2009 to present, and associate those records with the claims file. 3. Thereafter, schedule the Veteran for a VA spine examination with a VA examiner who has not previously examined him, to determine the etiology of any lumbar spine disability. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. The examiner should specifically attempt to reconcile all other opinions of record, including the July 2009 private opinion; the April 2009 and August 2010 VA opinions; and the findings in the April 2012 letter from the VA physician's assistant. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. The examiner must also consider the Veteran's statements regarding the incurrence of a low back disability, in addition to his statements regarding the continuity of symptomatology, and the statements offered by former colleagues and family as to observable symptoms. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the examiner should provide the following: (a) Set forth all current complaints, findings and diagnoses pertaining to any low back disability. (b) Is it at least as likely as not (50 percent or more probability) that any diagnosed lumbar spine disability had its onset in service, within one year of active service, or is otherwise related to the Veteran's service. The examiner should specifically discuss the service medical records documenting the evaluation and treatment for complaints pertaining to the low back and various diagnoses contained with those records, and their clinical significance. (c) If the examiner determines that there is another etiology for any diagnosed low back disability, that should be discussed in detail. 4. Then, readjudicate the claim. If any 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).