Citation Nr: 1315513 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-06 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Appellant served on active duty training (ACDUTRA) in the United States Army National Guard from June 1991 to August 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, wherein, the RO, in pertinent part, denied service connection for a low back disability. The Appellant filed a notice of disagreement (NOD) in March 2007. The RO issued a statement of the case (SOC) in February 2008, and the Appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in March 2008. This appeal was previously remanded in August 2011 in order to obtain a VA examination. That development having been completed, this case is once again before the Board. A review of the Virtual VA paperless claims processing system reveals nothing further pertinent to the present 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to obtain a new VA examination addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 124. In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2012). Here, the Appellant was administered a VA examination in September 2011. At this examination, the examiner noted the Appellant's history of complaints of back pain in service. In particular he noted that the Appellant was seen in July 1991 after twisting himself while unloading a box and diagnosed with mid low back pain. The Appellant's 1991 motor vehicle accident was also noted and it was indicated that he mainly injured his right knee. The Appellant reported back pain that was intermittent over the years and worsened around 2009. The Appellant was diagnosed with chronic lumbar sprain with a congenital anomaly. The examiner opined that the Appellant' back condition was as likely as not aggravated in service. However, the examiner did not provide a rationale explaining the basis for the aggravation. In July 2012, the examiner submitted an addendum opinion to the September 2011 VA examination. Upon reviewing the claims file, the examiner opined that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. In support, the examiner provided that the Appellant had a congenital condition of the lower back, including lumbarization of the S-1 vertebrae with a false joint/pseudoarthrosis on the left side to the sacrum. It was further provided that this condition set the Appellant up for future back problems depending on activities and injuries. The examiner stated that the 1991 motor vehicle accident did not cause any lower back pain. The Board finds that the September 2011 VA examination and July 2012 addendum opinion are inadequate for rating purposes. The VA examiner in the September 2009 examination merely stated that the Appellant's low back condition was aggravated in the military. Further, upon request for an addendum in July 2012 to address this outstanding issue of aggravation, the examiner merely discussed why the Appellant's condition would not be service-connected on a direct basis. The examiner provided no discussion of aggravation, to include reference to his September 2011 opinion in which he found the Appellant's condition had been aggravated. Accordingly, upon remand, the examiner must fully provide an opinion with a well reasoned medical explanation. See Nieves- Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. at 124. Accordingly, the case is REMANDED for the following action: 1. The Appellant should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Appellant has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Appellant, a notation to that effect should be inserted in the file. The Appellant is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, a VA orthopedic examination should be conducted by a qualified physician to determine the etiology and severity of the Appellant's low back condition. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. Recognizing that X-rays have shown a congenital lumbarization of S-1, the examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Appellant acquired a superimposed chronic low back disability as a result of the reported injury he sustained while on active duty for training in 1991 or which is otherwise related to the period of active duty for training. The Appellant's lay statements regarding continued complaints of symptoms should be taken into account. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Appellant and his representative. After the Appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ WAYNE M. BRAEUER 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).