Citation Nr: 1314827 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-20 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's spouse ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the Veteran's claim for service connection for a low back disorder. In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, seated at the RO (Travel Board hearing). A transcript has been procured and associated with the claims 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 A review of the record reflects that further development is necessary prior to analyzing the claim for a low back disorder on the merits. The Veteran essentially contends that he developed a low back disorder, currently diagnosed as L5 grade 1-2/3 spondylolisthesis and lumbar spondylosis, due to an in-service accident. Specifically, the Veteran contends that he experienced an in-service back injury while lifting and throwing a heavy rock as he was helping to construct a bunker during service in Korea. The Veteran indicated that he had difficulty moving immediately after the incident and that this severe limitation of motion lasted from 10 to 14 days. The Veteran indicated that he stayed in the bunker with his fellow service members until he was able to walk out under his own power. The Veteran has claimed to have experienced intermittent low back pain and an inability to perform heavy lifting since the incident. Reviewing the service treatment records, the Board notes that the service treatment records contain no notation indicating treatment or diagnosis for a low back disorder during service. In a July 1954 service discharge medical examination report, a service examiner noted that the Veteran's spine and other musculoskeletal systems were normal. In a November 1955 report of his medical history for Reserves duty, the Veteran indicated that he was in perfect health. In a March 1956 Reserves service medical examination report, a service examiner wrote that the Veteran's spine and other musculoskeletal systems were normal. In a contemporaneous March 1956 report of his medical history, the Veteran did not report experiencing or having experienced any symptomatology that could be noted as low back pain. At the March 2013 Travel Board hearing, when asked to explain the lack of any notations indicating low back disorder symptomatology in the service treatment records, the Veteran testified that he was raised to treat his own disorder symptomatology without the use of doctors. Moreover, the Veteran stated that he attempted to report his low back disorder symptomatology at the time of his discharge from active service; however, a medical examiner told him that he would be retained in service for an additional six months for treatment if he reported having an in-service back injury. As the Veteran did not want to postpone the date of his service discharge, the Veteran decided not to report his low back disorder symptomatology. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused veteran's death). In this instance, the Board notes that the Veteran is competent to provide evidence regarding his in-service low back disorder symptomatology. Moreover, the Veteran's account of the in-service accident which resulted in the low back injury and his reasons for not reporting it during service have been consistent throughout the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that, in weighing credibility of lay evidence, VA may consider such elements and consistency). The Board finds that the Veteran's failure to report any low back symptomatology on his post-active service reports of his medical history to be troubling. Yet, considering the consistency of his statements regarding the in-service injury and the credible reasons for his failure to report the injury during service, the Board still finds the Veteran's account of his in-service injury to be competent and credible evidence. See id. Reviewing the other evidence of record, in a June 2012 VA medical examination report, the Veteran told the June 2012 VA examiner about his in-service injury and his resulting symptomatology. After performing an examination, the VA examiner diagnosed the Veteran as having L5 grade 1-2/3 spondylolisthesis and lumbar spondylosis. Having interviewed the Veteran and reviewed the claims file, the VA examiner found that the Veteran's low back disorder was less likely incurred in or caused by the claimed in-service injury. In explaining this opinion, the VA examiner noted that the service treatment records contained no documentation indicating evaluation or treatment for back pain symptomatology. The VA examiner also noted that the July 1954 service discharge medical examination report was normal. The VA examiner stated that it was more likely than not that the Veteran's current lumbar spine disorder was due to developmental lumbar spondylolisthesis and/or chronic degenerative changes with aging. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). As noted above, in the June 2012 VA medical examination report, the VA examiner noted the Veteran's lay report of his in-service low back injury. Yet, having reviewed all the evidence, the VA examiner found that the Veteran's low back disorder was not related to the claimed in-service injury, in large part, because the service treatment records contained no notation indicating treatment or diagnosis for a low back disorder. In essence, the June 2012 VA examiner was stating that the medical evidence indicated that the Veteran's low back injury did not occur as described by the Veteran. As noted above, the Veteran's consistent account of his in-service low back injury is both competent and credible evidence in this matter. The Board notes that a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Veteran has presented credible evidence of an in-service low back injury, the June 2012 VA examiner's opinion, essentially finding the Veteran's current low back disorder is not related to service due, in part, to the lack of medical evidence of an in-service injury, is inadequate. See id. Therefore, the Board finds that a thorough VA medical examination to determine the nature and etiology of the Veteran's claimed low back disorder based on all credible evidence, both lay and medical, should be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one). The Board also notes that there is a possibility that outstanding treatment records are not included in the claims file. In a March 2012 private treatment record, a private examiner, specifically a Dr. William A. Bruck, noted reviewing the Veteran's medical history, an examination report, and a back X-ray report. The claims file does not contain any other treatment records, to include any X-ray or examination reports, from the offices of Dr. Bruck. Therefore, as part of this remand, the Board finds that reasonable attempts should be made to procure any outstanding treatment records regarding treatment for the Veteran's low back disorder, to include any records from the offices of Dr. Bruck. 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 AMC/RO should request the Veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for the claimed low back disorder. After securing the necessary releases, the AMC/RO should attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record, to include any outstanding records from the offices of Dr. William A. Bruck. 2. The AMC/RO should schedule the Veteran for a VA examination for the purpose of determining the nature and etiology of the Veteran's claimed low back disorder. The VA examiner should review all relevant evidence from the claims file, to include the Veteran's credible accounts of an in-service low back injury incurred while lifting and throwing a heavy rock. Having done so, the VA examiner is asked to offer the following opinion: Is it as least as likely as not (50 percent or greater degree of probability) that the Veteran's claimed low back disorder began during service or is otherwise etiologically linked to any in-service event, to include the in-service low back injury. In providing an opinion, the VA examiner should note the opinions of both the June 2012 VA examiner and the opinion of the March 2012 private examiner, Dr. Bruck. If the VA examiner finds that he or she disagrees with the opinions of either the June 2012 VA examiner or Dr. Bruck, the VA examiner should specifically note the disagreement and provide a rationale for such disagreement. A rationale should be provided for any opinion or conclusion expressed. If the VA examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 3. Thereafter, the AMC/RO must consider all of the evidence of record and readjudicate the claim. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran an opportunity to respond. The Veteran 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 Z. JONES 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).