Citation Nr: 1315213 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 04-35 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for arthritis of the lumbar spine (low back disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to November 1969 and from February 1970 to May 1982, including service in the Republic of Vietnam. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2010. A transcript of the hearing is associated with the claims file. In June 2011, the Board remanded the above issue for further development. Subsequently, the Board again remanded the issue in November 2012. The Board acknowledges that the November 2012 remand indicated that the Veteran's claim for a back disability encompasses both the low back and neck, specifically arthritis of the cervical and lumbar spine. In this regard, the Board misspoke, as the issue of entitlement to service connection for a cervical spine disability was denied in the Board's June 2011 decision, and is no longer on appeal; the Board regrets this error. The Board has considered the material located in the Veteran's Virtual VA electronic file in its consideration of the issue on appeal. 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 asserts that he has a back disability as a result of service, to include as secondary to his service-connected left knee disability. (See May 2006 Written Statement and October 2012 Informal Hearing Presentation). He has also related his low back disability to his exposure to extreme cold while on active duty and an incident in 1977 in which he fell from a truck. The Veteran has a diagnosis of osteoarthritis of the lumbar spine. He was afforded VA examinations in July 2011 and in December 2012. Both VA examiners opined that the back condition was not caused by or a result of military service, each relying on the rationale that there was no documentation in the service treatment records regarding the back, and there were no evaluations for back pain in the VA treatment records. Such an opinion is inadequate, as it fails to address the Veteran's competent reports of in-service injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of service medical records to provide a negative opinion). The Veteran is competent to report that he experienced lumbar spine symptoms since service, and that he was injured in service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, the examiners were incorrect in their assertions that there were no references to back treatment in the service treatment records, as there is a June 1977 in-service treatment note that referenced a history of shrapnel in the "T-spine." The opinions are also inadequate as they are based on incorrect facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). Neither examiner has addressed the Veteran's contentions that his spine disability was caused by or aggravated by his cold weather exposure in the military, despite the Board's June 2011 and November 2012 instructions to do so. The examinations are thus inadequate in that regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Finally, despite the Board's November 2012 request to address whether the Veteran's spine disability was caused or aggravated by his service-connected knee disability, no opinion regarding that question has been proffered. Id. Because VA has failed to assure compliance with the Board's remand instructions, and because to date a VA examiner has not provided a satisfactory opinion regarding the questions of whether the Veteran's back disability began during or is otherwise etiologically related to his active duty military service (including in-service injuries and exposure to cold weather), and whether any back disability was caused or aggravated by the service-connected knee disability, the claim must again be remanded for an additional opinion. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing 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). As such, the Board has no discretion and must again remand this claim. The Board regrets the additional delay. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner that conducted the December 2012 examination, if he is available. The examiner should review the claims file, this remand, and the Veteran's Virtual VA electronic records file. The ensuing addendum should indicate that such a review occurred. The examiner should reevaluate his opinion concerning direct service connection, and should address the issue of whether the spine disability has been caused or aggravated by the service-connected knee disability. The examiner should specifically opine as to the following: a. Is it as likely as not (50 percent probability or greater) that any current disorder back disability first manifested during the Veteran's active service, or is otherwise related to the Veteran's active service (to include any in-service injury, and/or exposure to extreme cold weather during service)? In addressing this question, the examiner should note the June 1977 treatment report indicating a history of shrapnel in the thoracic spine. b. Is it as likely as not (50 percent probability or greater) that any current back disability was caused by or is aggravated (chronically worsened beyond the natural progression of the disease by his service-connected left knee disability? In this regard, the examiner should consider the Veteran's statements and the treatment records demonstrating instability of the knees. c. If the spine disability was not caused by, but is aggravated by, the service-connected knee disability, the examiner should identify the baseline level of severity of the spine disability prior to the onset of aggravation, and the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity of the spine disability is due to the natural progress of the disease process, the medical professional should identify the degree of increase in severity due to natural progression. A complete rationale is necessary for all opinions expressed by the examiner. If the examiner is unable to reach a conclusion without resort to speculation, he should so indicate, and should explain why. If the examiner who conducted the November 2012 examination is no longer available, a medical professional with similar qualifications should provide the requested opinions. The Board notes that there is no suggestion that a new physical examination is necessary; no examination should be scheduled unless one is specifically requested by a medical professional. 3. Review the examination report to ensure that it fully addresses the questions presented and complies with the directives of this remand. If the report is inadequate in any manner, take immediate corrective action. 4. Then readjudicate the appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case, and should be afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ CHERYL L. MASON 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).