Citation Nr: 1313413 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-22 871A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1953 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1971 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the above claim, as a result of the Board's December 2007 decision finding that the notice of disagreement (NOD) the Veteran submitted in March 2005, after finally receiving notification of the May 1971 decision due to an address error, was timely. In December 2011 and October 2012, the Board remanded the matter for additional evidentiary development. 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 Unfortunately, a remand is required in this case. While the Board regrets the additional delay, further development is required prior to appellate review. Specifically, the supplemental medical opinion requested in the Board's October 2012 remand order is not adequate for rating purposes. Specifically, as noted by the Veteran's representative, the opinion is partially premised on a statement in the Veteran's April 1975 VA treatment records that was contemporaneously crossed out by the Veteran's physician just over a week after it was originally written into an x-ray report. An examination that relies on an inaccurate history is inadequate for rating purposes. West v. Brown, 7 Vet. App. 70, 77-78 (1994); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that medical opinions premised on inaccurate facts are entitled to no probative weight). Furthermore, the examiner failed to discuss the lay evidence on the nature of the Veteran's in-service injury. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that a VA medical opinion was inadequate where the examiner failed to consider whether the Veteran's lay statements presented sufficient evidence of the etiology of the claimed disability); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that the VA examiner's opinion was inadequate where the examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service). The Veteran's representative asserts that the "clicking" sound heard at the time of the alleged injury supports the existence of an objective injury in service as the Mayo Clinic staff lists hearing or feeling a "pop" in the joint at the time of the injury as a symptom of a back sprain. Lastly, the examiner found that the Veteran's current lumbar spine disorder was not related to the stress of lifting in service for the reason that it would "establish very problematic precedent" to follow that "line of reasoning" as "essentially everyone in military service is exposed at some point in time to the stress of lifting" and "anyone who developed a degenerative condition of the spine which is ubiquitous" in an "aging population would be eligible for service connection." This would, in the examiner's opinion, functionally create a "presumptive condition" for degenerative conditions of the spine, "which makes absolutely no sense from a medical or rating perspective." The VA examiner, as an orthopedic specialist, is not competent to provide an opinion on the issue of legal presumptions, particularly as arthritis is a disability subject to certain presumptions relating to chronic conditions either (1) identified in service, or within a year after discharge from service, or (2) associated with continuous symptoms linking a condition noted in service, or within a year after discharge from service, to the current diagnosis. See 38 U.S.C.A. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307. For this reason, examiners are requested to focus on the specific medical questions asked by the Board without consideration of the manner in which those opinions may be applied to the factual and legal determinations made by the Board during adjudication of the Veteran's claim. Here, the Veteran served as a wheeled vehicle repairman, which required him to frequently lift heavy objects like vehicle engines, transmissions, and differentials. See July 2008 formal appeal. Service connection claims must be considered on the basis of the specific type and circumstances of the individual Veteran's service. 38 C.F.R. § 3.303(a). Therefore, the examiner is asked to explicitly consider the particular lifting of heavy objects such as vehicle engines, transmissions, and differentials done by the Veteran in service as a wheeled vehicle repairman, in combination with the reported injury and popping sound, in providing the requested opinion. Therefore, as the supplemental medical opinion obtained in November 2012 is inadequate for rating purposes, this appeal must be remanded for an additional medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the January 2012 and November 2012 medical opinions were partially premised on the pattern of the degeneration of the Veteran's lumbar spine seen by x-ray, no x-rays were taken pursuant to the Board's prior remand requests, and the most recent lumbar spine x-ray report of record was taken in 2007, the Veteran should be provided with a complete VA examination with a different VA examiner, if possible. Appropriate efforts should be made to obtain additional relevant treatment records, including any VA treatment records from the VA Medical Center in Hines, Illinois, that are not already present in the claims folder or electronic records file. 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). Expedited handling is requested.) 1. Make appropriate efforts to obtain any outstanding relevant treatment records, including VA records showing treatment for a back disorder from the VA Medical Center in Hines, Illinois. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Then, schedule the Veteran for an appropriate VA examination of his lumbar spine disorder. The claims file and a copy of this Remand must be made available to the examiner in conjunction with the examination. Any indicated tests, including x-rays, should be accomplished. The examiner is asked to conduct a thorough review of the relevant evidence in the claims folder, including the medical evidence and the lay statements of record, and to make the following determinations: (a) If x-ray or other imaging reports are not obtained in conjunction with the examination, the examiner should explain why it was not necessary to perform these tests in order to provide the requested medical opinion. (b) The examiner is requested to provide a diagnosis of any lumbar spine disorder found to be present. (c) The Veteran states that he injured his back lifting a heavy motor part in service and was told that an audible "click" was heard. He also says that he has experienced back since that time. Please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current lumbar spine disorder (i) had its clinical onset during active service or (ii) is related to the injury described by the Veteran or any in-service disease, event, or injury. Please explicitly discuss the injury described by the Veteran; the significance, if any, of the clicking sound heard; and the Veteran's reported history of continuous symptoms of back pain since service. (d) Medical information from the Mayo Clinic associating a "popping" sound with a back sprain was submitted in support of the Veteran's claim. If the examiner finds that the Veteran did suffer a back sprain in service, as suggested in the January 2012 VA examination report, please provide an opinion as to whether it is at least as likely as not that the Veteran's current lumbar spine disorder is related to a back sprain the Veteran incurred in service. (e) Please provide an opinion as to whether it is at least as likely as not that the Veteran's current lumbar spine disorder is related to wear and tear from the regular lifting of heavy objects like vehicle engines, transmissions, and differentials as a wheeled vehicle repairman over three years of active service. In providing this opinion, please consider the Veteran's reported history of continuous symptoms of back pain since service. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).