Citation Nr: 1317002 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-07 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from October 1944 to November 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio and Montgomery, Alabama. Jurisdiction currently resides with the RO in Montgomery, Alabama. The Veteran testified before the undersigned at a September 2011 Video Conference hearing. His testimony was limited to the issue of entitlement to service connection for a low back disability. The hearing transcript is of record. During the course of this appeal, an additional issue became ripe for appellate review. A different Veterans Law Judge took testimony on the issue of entitlement to an initial compensable rating for tinea cruris (claimed as skin rash). That issue will be addressed in a separate decision. In September 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. 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. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veteran contends that he currently suffers from a low back disability that is the result of his time in active duty service. Specifically, he claims that in his capacity as a lineman for telephones and telegraphs in service, he attempted to put up a cross-arm of a telephone pole, which was very heavy and caused him to experience low back pain. The Board notes that the Veteran's service treatment records and most of his service personnel records are not available for review. In November 2008, the Veteran was notified that there was a fire at the National Archives and Records Administration in July 1973. The Veteran was requested to fill out and return the enclosed NA Form 13055. The Veteran returned this form in February 2009. Later in February 2009, VA issued a Formal Finding on the Unavailability of Service Records after an extensive search. Under such circumstances, where service records have been lost or destroyed through no fault of the Veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). In its September 2012 remand, the Board noted the Veteran's current diagnoses of osteoarthrosis, spinal stenosis at L2-3 and severe general diffuse spondylosis. The Board noted further that review of the Veteran's DD Form 214 indicated that his military occupational specialty was a lineman for telephones and telegraphs. Based on this evidence, the Board found that the Veteran's described back injury was consistent with his in-service duties as a lineman, and concluded that for purposes of this claim, the Veteran injured his back while attempting to raise a telephone pole cross arm in service. In accordance with the remand, the Veteran was afforded a VA examination to determine the nature and etiology of his low back disability in October 2012. The physician's assistant (PA) who conducted the examination diagnosed the Veteran with degenerative arthrosis and degenerative disc disease, and opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. His rationale was that there were no military medical records available showing an injury in service, and that the only available evidence of an in-service injury was the subjective report made by the Veteran during his Board hearing. The PA also noted that the only objective evidence available came from the private doctors and the examination that he had just completed. The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board notes that the PA appears to have completely ignored the Board's finding in the aforementioned September 2012 remand, that the Veteran injured his back while attempting to raise a telephone pole cross arm in service, and as such, he did not offer an opinion as to whether any of the Veteran's current low back disabilities is related to the claimed in-service back injury. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet.App. 303 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet.App. 295 (2008). As the examiner did not consider all of the Veteran's history or complaints, his negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current low back disability is necessary. See 38 C.F.R. § 4.2 (2012). In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of his low back disability, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 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. Afford the Veteran a VA spine examination with an appropriate expert to determine the nature and etiology of his claimed low back disability. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. 2. For each currently diagnosed low back disability, the examiner should provide an opinion as to whether the disability is, at least as likely as not (50 percent probability or more), related to a disease or injury in service, to include his reported back injury sustained while attempting to raise a telephone pole cross arm in service. Discuss whether the Veteran's current diagnosis is the type expected from a distant injury like the one described by the Veteran. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. The examiner should ensure that the rationale takes into account the Veteran's reports of injuring his back while attempting to raise a telephone pole cross arm in service. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ MARJORIE A. AUER 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).