Citation Nr: 1313434 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-06 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disability, to include lumbar stenosis, arthritis, and degenerative disc disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claim has been before the Board on an earlier occasion, and was remanded in November 2012 for further evidentiary development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran testified before a Decision Review Officer (DRO) at a November 2010 hearing and before the undersigned at an October 2012 hearing at the RO. Transcripts have been associated with the file. 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 The Veteran's claim has been before the Board on a previous occasion, and in a remand order dated in November 2012, it was ordered that a new, comprehensive VA examination be afforded to ascertain the nature and etiology of the claimed back disability. In this regard, the Board was specific in its instructions that the claims file, to include any records contained in the electronic "Virtual VA" system, must be reviewed prior to the making of any opinion. It was specifically asked that the examiner opine as to if it was at least as likely as not that any current back disability had causal origins in active service. Specifically, it was asked if such a current and chronic back disorder had origins with the Veteran's playing of football while assigned to Navy Special Services. The Board took the Veteran's testimony on having played such a sport as credible, and thus there is no issue as to if there was in-service engagement in such a contact sport while on active duty. The returned opinion, dated in December 2012, purports to have complied with Board directives; however, upon further review of the findings, such compliance is suspect. Indeed, the examiner reported that the Veteran had, "by history," reported having a surgery on his back; however, the Veteran "could not remember the date." There was no further explanation as to the post-service surgical history other than this statement, and the examiner did not discuss the pathology which required surgical intervention. Upon review, the Board notes that the evidentiary record contains two private surgical reports, dated in 1993 and 1998, which clearly establish that surgical laminectomies were performed to treat stenosis and spinal compression. There is also a private diagnosis of degenerative disc disease occurring in 1999. Had the examiner actually reviewed the claims file, such evidence would have been apparent to him, and he could have concluded that the Veteran's report of surgery was confirmed by the record. The examiner then offered a conclusory statement that "there is no medical evidence that activity alters the course of the congenital condition." The examiner limited his assessment of the Veteran's condition as being spinal stenosis; however, he also listed degenerative disc disease as being a separate diagnostic entity, and made no reference as to if that pathology had causal origins in service. The Board cannot conclude that the examination results, irrespective of a review of the claims file, are adequate. Indeed, the examiner simply stated that there was no documented treatment for many years after service (although, it is not apparent as to when the examiner actually began to review the evidence of post-service treatment), and stated that the "usual" progression of stenosis is one of congenital origin, with "no medical evidence" supporting a link between "activity" and the development of stenosis. As noted, the interplay of degenerative disc disease was not discussed (to include the possibility that this disability had causal origins in service), the Veteran's allegations of pain since service were not discussed (the examiner simply stated the "usual" progression of stenosis without referencing the Veteran's allegations or specific symptom history), and the examiner did not explain as to if the lack of "medical evidence" linking trauma to stenosis was based on his own limitation of knowledge or, alternatively, based on a limitation of knowledge of the medical community in general. The probative value of a medical opinion comes from when it is factually accurate, fully articulated, and when sound reasoning exists for the conclusion (not the mere fact that the claims file was reviewed, and in this case, even such a minimal review appears not to have occurred). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given this, and given the inconsistencies in the examination report when compared to the evidentiary record (which, as noted, make it evident that the claims file was not reviewed), the Board must remand the claim for a new examination, with a different examiner, for the purposes of determining the nature and etiology of the claimed back disability. 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. Schedule the Veteran for a comprehensive VA examination with an examiner other than the one who conducted the December 2012 examination. In this regard, it is asked that the examiner identify all pathologies present in the back, and to opine as to if any back disability is as likely as not to have been caused by any incident or event of active service, to include playing football or engaging in boxing from July 1951 to July 1955. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. It would be helpful if the examiners would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The examiners should provide a complete rationale for any opinion provided, and should specifically reference the Veteran's complaints of pain since service. 2. Then, the RO should re-adjudicate the claim on the merits. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ JOHN J. CROWLEY 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).