Citation Nr: 1318159 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 03-28 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disability, including arthritis and degenerative disc disease. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1980, with additional service in the Army Reserves and Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's application to reopen a previously denied claim of entitlement to service connection for a back disability. A hearing on this matter was held before the undersigned Veterans Law Judge on March 17, 2008. A copy of the hearing transcript has been associated with the file. In July 2008, the Board reopened and remanded the claim of entitlement to service connection for a back disability. In February and November 2011 and in August 2012, the Board remanded for further evidentiary development. REMAND In August 2012, the Board remanded the Veteran's claim of service connection for a back disability, including arthritis and degenerative disc disease, to provide him with a VA examination. The Board found deficiencies in the previous December 2011 VA examination in that the VA examiner's opinion that the Veteran's symptoms were less likely than not incurred in service, or caused or made chronically worse by service-connected disability appeared to hinge on the absence of herniated discs or spinal stenosis, without considering whether any other disorder of the spine or musculature of the back could be causing the Veteran's symptoms. According to the examiner, the June 2011 MRI and July 2010 X-ray study "do not show any prolapse of lumbar disc causing spinal canal or lateral exit foraminal narrowing, there is no back condition." In addition, the examiner did not appear to reconcile his finding of "no back condition" with the clinical notes documenting years of treatment for various diagnoses of the spine and musculature of the back, or even with his own conclusion that the Veteran's symptoms could be attributed to a lumbar strain. The examiner also did not address the impact of the Veteran's altered gait caused by service-connected foot disability on the development and progression of any back disability. The Board specifically asked the examiner to clarify his opinion that the Veteran did not have a back disability, especially in light of the many diagnoses of disorders involving the lumbar and thoracic spine. The Board requested that the examiner state the medical probabilities that any back disorder(s) had its onset during military service. The examiner was also asked to specifically comment on the probabilities that the impact to the Veteran's body during a 1978 parachute jump injury caused any spine disability. If the examiner found that the diagnosed back disorders did not have onset during service or were otherwise traceable to military service, he was asked to provide an opinion as to whether any disorder was caused or made chronically worse by a service-connected disability, specifically bilateral pes planus with metatarsalgia and bilateral tarsal tunnel syndrome. The impact of the Veteran's altered gait on the development and progression of any spine disability was also to be addressed. The Veteran was provided a VA examination by a different examiner in October 2012. The examiner indicated that the Veteran's back disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner indicated that it was not likely that the back disorder began in service as a result of the 1978 parachute jump. The examiner noted that the 1978 injury resulted in foot pain, but there was no mention of low back pain at that time. It was also pointed out that, on June 1980 physical examination, there was no mention of low back pain. Nevertheless, the Board notes that the absence of supporting evidence in treatment records is not sufficient reason, by itself, for rejecting the Veteran's reports. Additionally, a closer review of the record shows that a May 1980 VA examination report included complaints of a bad back. Also, a December 1980 treatment record from the Martinsburg VA Medical Center (VAMC) documented the Veteran's reports of having a bad walking pattern, among other things, after more than one bad landing from parachute jumps. While the examiner found that the spine disorder likely could be due to multi-factorial causes other than one parachute jump in 1978, the examiner failed to consider the Veteran's reports of landing wrong during parachute jumps on multiple occasions in service. The Veteran is competent as a layperson to offer his account of how he injured his back and the onset of an altered gait and any back pain following the alleged incidents. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Additionally, service treatment records include a November 1977 record that reported the Veteran's complaints of pain at the site of a lumbar puncture. As the October 2012 VA opinion appears to be based on an inaccurate history, including the Veteran's reports, it has limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, while the examiner opined that it was not likely that the Veteran's chronic pes planus and history of tarsal release surgery were sufficient to initiate the multi-level spine disorder, the examiner did not address whether the Veteran's current back disability was chronically made worse by a service-connected disability, specifically the bilateral pes planus with metatarsalgia and bilateral tarsal tunnel syndrome. The examiner also did not address the impact of the Veteran's altered gait on the development and progression of any spine disability. As the issue of aggravation by a service-connected disability was specifically requested to be addressed in the August 2012 remand, and such matters were not addressed in the October 2012 VA examination and have not been adequately addressed elsewhere in the record, another VA opinion is required. A remand by the Court or Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to ensure compliance. Id. at 270-71; see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The record reflects that the Veteran underwent back surgery as recently as November 2012 at a private facility and follow-up treatment records have not been associated with the claims file. See 38 C.F.R. § 3.159(e)(2). Also, the Veteran receives ongoing treatment at the Martinsburg VAMC. Therefore treatment records dated since December 2012 that have not been associated with the Veteran's claims file or Virtual VA eFolder should be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for back disability since December 2012 from the Martinsburg VA Medical Center and from any other sufficiently identified VA facility. If any such records are unavailable, the Veteran should be notified of the identity of any records that are unavailable, the efforts VA has undertaken to obtain the records and any further action that may be taken concerning his claims, and he should be notified that he may submit the records himself. All such notification must be documented in the claims file. If the VHA medical records are electronically available in CAPRI, follow current procedures to review and identify VHA medical records pertinent to the disability claims electronically available in CAPRI. Upload to the Virtual VA eFolder the VHA medical records electronically available in CAPRI. 2. Request that the Veteran identify any medical treatment records for a back disability and furnish appropriate authorization for the release of private medical records, to include the private treatment records since his November 2012 back surgery. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. 38 C.F.R. § 3.159 (2012). Any negative search response must be noted in the record and communicated to the Veteran. 3. Arrange for the Veteran's claims file, including any relevant records in Virtual VA, and a copy of this remand to be reviewed by the VA examiner who previously examined the Veteran in October 2012. If the October 2012 VA examiner is unavailable, then forward the request to another VA examiner. The examiner(s) should: a. Identify any and all disorders of the thoracolumbar and cervical spine. b. Provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the diagnosed thoracolumbar or cervical spine disorder had its onset in service or within the first post-service year or is otherwise related to any period of service, to include landing wrong on multiple parachute jumps as well as the 1978 parachute jump injury and/or documented complaints of pain in the area of the lumbar puncture in November 1977. c. If not directly related to service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed lumbosacral or cervical spine disorder was either caused or made chronically worse by service-connected bilateral pes planus with metatarsalgia and bilateral tarsal tunnel syndrome. The examiner must comment on the May 1980 VA examination report that noted a history of a bad back and on a December 1980 VA treatment record showing that the Veteran had complaints of episodes of numbness in the legs and an abnormal walking pattern as a result of more than one bad landing from parachute jumps. The impact of the Veteran's altered gait on the development and progression of any spine disability must be addressed. The examiner must provide reasons for each opinion. The medical reasons for accepting or rejecting the Veteran's and his wife's statements regarding onset of disability during service should be set forth in detail. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. (If the examiner concludes that an examination is required to provide the required opinions, another examination should be scheduled.) 4. The agency of original jurisdiction should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be taken. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, re-adjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).