Citation Nr: 1317629 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-32 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to February 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded the claim for additional development in March 2006 and November 2009. In July 2011 the Board issued a decision denying the Veteran's claim of service connection for a low back disability. In March 2012, VA and the Veteran's representative signed a Joint Motion for Remand and later that same month the United States Court of Appeals for Veterans Claims issued an Order that vacated and remanded the July 2011 Board decision. The following determination is based on review of the Veteran's claims file and the Virtual VA electronic file. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although the Board regrets the additional delay, further development is necessary prior to the disposition of the Veteran's claim for service connection for a low back disability. The Veteran contends that he injured his low back while in basic training, for which he was hospitalized. He contends that his back never healed correctly and has become progressively worse over time. He notes that he gave a history of recurrent back pain at the time of separation from service. The service medical records show that in July 1973, the Veteran was diagnosed with a severe lumbosacral strain. X-ray examination was negative for any fracture. There was no loss of sensation, numbness, or burning in the lower extremities. He was placed on physical profile and prescribed bed rest for 24 hours. Three days later, he was noted to be gradually improving with bed rest and heat. In August 1973, he was noted to be doing well and was determined to be ready for duty. His physical therapy appointment was canceled. On February 1976 separation examination, the Veteran reported that he had vague low back pain, but that he had not sought treatment for the problem. The Veteran submitted records dated in 1998 from the Georgia Department of Corrections which show treatment for low back pain when he bent over to pick up a buffer. In May 1998, the Veteran reported back pain secondary to a fall and was assessed with muscle spasm. In August 1998, the Veteran again reported back pain and was assessed with chronic pain. The nature of the pain was described as sharp, burning pain in the left buttocks radiating down the left leg. A December 1998 X-ray of the lumbosacral spine revealed some degeneration at L5-S1. VA outpatient treatment reports dated from February 2001 to December 2009 show that the Veteran reported low back pain in February and July 2003. The Veteran was assessed with chronic back pain in February 2004 and an X-ray was recommended. March 2004 X-rays of the lumbar spine showed a question of lumbar spasm with no bony lesion of the lumbosacral spine. In a June 2004 statement, the Veteran's mother recalled that the Veteran injured his back during active service, and that after he returned home, he was treated by a local physician but that physician had retired many years earlier. Thus, treatment records were unavailable. In September 2009, the Veteran reported an injury to his spine while sitting on a bus bench which broke. He indicated that he was lodged between the spoke and the wall and injured his low back. The Veteran reported that he was undergoing physical therapy for the low back injury. He was assessed with lumbar sprain due to injury. A September 2009 X-ray of the lumbar spine performed by Radiology Associates of Dublin found moderate degenerative disc disease (DDD) at L5-S1 and moderate facet hypertrophy at the lower three levels. An October 2009 magnetic resonance imaging (MRI) of the lumbar spine performed at Elite MRI of Laurens revealed DDD at L5-S1, mild spondylosis and bulge at L5-S1, and moderate facet hypertrophy at the lower three levels. At an April 2010 VA examination, the Veteran reported that he sustained an injury to his back while in basic training and sought treatment for his back on several occasions in service. The examiner noted that the Veteran's claims file was unavailable for review at that time. Physical examination, including X-rays of the lumbar spine revealed a diagnosis of degenerative changes with possible disc disease at L5-S1. In an addendum dated two days after the April 2010 VA examination, the examiner indicated that the claims file was reviewed and noted the Veteran's relevant medical history in the addendum. The examiner opined that it was less likely than not that the Veteran's current back condition was caused by or as a result of his period of active duty. The examiner's rationale was that the Veteran was seen in service in 1973 with a report of back pain but the Veteran improved after several days of physical therapy. The examiner noted there was no entry to indicate ongoing problems with the Veteran's back following physical therapy. The April 2010 VA examiner also included an addendum opinion in May 2010. The examiner noted that the second volume of the claims file was not reviewed at the time he promulgated the April 2010 addendum opinion. Following review of the entire claims file the examiner noted that the additional information did not change the original opinion from April 2010. Another addendum opinion was obtained from the April 2010 VA examiner in January 2011. The examiner noted that he had reviewed additional evidence from the Georgia Department of Corrections. The examiner noted that the information from the Georgia Department of Corrections indicated that that the Veteran reported back pain radiating to the left leg. The examiner noted that the Veteran's complaints in April 2010 indicated that he had pain in the lower lumbar area more on the right side, a burning pain in the right buttock, and radiating pain down the right leg. The examiner indicated that the additional information did not provide any information that would change the opinion that it was less likely than not that the Veteran's current back condition was caused by or as a result of the Veteran's active service. Added to the record in March 2013 was an opinion by a private physician from Pennsylvania. The examiner noted that pertinent records were reviewed. It does not appear that the examiner actually examined the Veteran. This physician disagreed with the VA examiner's 2010 opinion. It was noted that the Veteran complained of recurrent back pain upon separation examination in 1976, even though he did not seek medical attention at the time. In that physician's opinion, it was more likely than not that the Veteran's ongoing back pain and lumbar disc degenerative disease had its origins with his inservice back injury. For rationale, it was noted that it was not unreasonable that he may not have sought medical treatment until he reached a point where he could not handle the pain any more. That was not unusual for individuals with back pain to have continued flares which were treated without seeking medical input because there was not much that could be done until the individual required an intervention. There are contradictory opinions of record regarding whether the Veteran's low back problems are associated with service. The 2010 VA opinion is inadequate because the examiner's opinion appears to be based on the absence of postservice medical treatment for back complaints and does not consider the Veteran's assertions that he has experienced low back pain since the initial inservice injury. As such, the opinion is inadequate for rating purposes. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The private opinion from 2013 is inadequate in that it does not appear that the physician ever actually examined the Veteran or reviewed his entire file. Moreover, the conclusion reached does not contain sufficient detail. 38 C.F.R. § 4.2 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Because the Veteran's service medical records show that he suffered from a low back muscle strain, and because he (and others) have alleged ongoing back symptoms since service, which was not considered by the VA examiner in 2010 and 2011, additional review of the Veteran and the record is necessary prior to a Board decision regarding whether the Veteran's low back condition was caused by his service. Therefore a VA examination is necessary in order to fairly decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the March 2012 Joint Motion for Remand agreed that the VA examiner's opinion did not consider the Veteran's statements regarding continuity of symptomatology in service and after service. Specifically the issue was remanded so that a VA orthopedic addendum clarification from the examiner who performed the April 2010 evaluation could be obtained or for a new contemporaneous examination to be conducted. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a medical doctor specializing in orthopedic disabilities to determine the nature, severity, and etiology of any current low back disability. The examiner should review the claims folder and should note that review in the report. The examiner should also provide a rationale for the opinion and reconcile it with all relevant evidence of record. Additionally, the examiner should consider the Veteran's service medical records, documenting treatment for low back strain in 1973 and report of recurrent back pain upon separation in 1976, and his post-service medical records and VA examination reports, showing the existence of degenerative changes and possible disc herniation many years later. It is most important that the examiner also consider and comment upon the Veteran's lay assertions and any other evidence regarding low back symptoms in service, and a continuity of low back symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the examiner's opinion should address the following: a) Diagnose all current low back disabilities. b) State whether it is at least as likely as not (50 percent or greater probability) that any current low back disability is etiologically related to the Veteran's 1973 severe lumbosacral strain and his subsequent in-service treatment for low back pain and related symptoms. c) State whether it is at least as likely as not (50 percent or greater probability) that any current low back disability was otherwise caused or aggravated by any aspect of the Veteran's active service. d) Consider and comment upon the Veteran's lay assertions and any other evidence regarding low back symptoms in service, and a continuity of low back symptomatology since service. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).