Citation Nr: 1319491 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-30 231 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability, to include degenerative lumbar disc disease status-post laminectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to April 1967, and from March 1969 to November 1969; and had prior periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision that, in pertinent part, denied service connection for a low back disability, to include degenerative lumbar disc disease status-post laminectomy. The Veteran timely appealed. In May 2010, the Veteran testified during a video conference hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In January 2011, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In a rating decision dated in December 2011, the RO denied a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). By way of a May 2012 letter, the RO acknowledged receipt of a notice of disagreement with respect to that determination and indicated that post-decision review would occur, which could include further development of the evidence and a hearing. As this is not a situation where VA has failed to acknowledge receipt of a notice of disagreement, see Manlincon v. West, 12 Vet. App. 238 (1999), and as the RO is taking action on the matter while another claim was transferred to the Board, the Board will not take jurisdiction over the issue at this time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND Records In August 2012, the Veteran submitted a copy of a notice from the Social Security Administration (SSA), indicating that he became disabled for Social Security purposes in October 2009; and that he was entitled to monthly disability benefits beginning in April 2010. The SSA decision, as well as the medical evidence (other than VA treatment records) that is used by SSA to award disability benefits, and any recent evaluations should be obtained. The Court has held that when VA is put on notice of the existence of relevant SSA records, VA must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493, 494 (1992). Any additional VA treatment records for the Veteran's low back disability, to include degenerative lumbar disc disease status-post laminectomy, dated from April 2013 to the present, should be associated with the Veteran's claims file (paper or electronic). VA is obliged to assist a Veteran to obtain evidence pertinent to his claim. See 38 U.S.C.A. § 5103A (West 2002). Addendum Opinion The Veteran contends that service connection is warranted for a low back disability, to include degenerative lumbar disc disease status-post laminectomy, on the basis that he injury his lumbosacral spine while driving a tractor-trailor on a muddy dirt road in Vietnam, when the vehicle slid off of the road and into a ditch, and pinned the Veteran against the steering wheel. The Veteran was treated with medications and complained of low back pain at the time, and also has reported having back problems ever since. The Veteran is competent to describe his symptoms. Service treatment records at the time of the in-service incident show that the Veteran was hospitalized and diagnosed with muscle sprain in December 1966, after being pinned in the cab of his truck. He was treated for marked tenderness of the left paravertebral area and left anterior costophrenic space. Medication and heat were recommended for two to five days, and then passive exercises. X-rays taken at the time were negative. The Veteran again complained of low back pain and sought treatment in January 1967 and in March 1967. Service treatment records at the time of the Veteran's initial release from active duty in April 1967 show no disability of the spine. On a "Report of Medical History" completed by the Veteran in February 1969 for entry to his second period of active service, he checked "no" in response to whether he ever had or now had back trouble of any kind. Lordosis was noted by an examiner in March 1969. The Board notes that, prior to the Veteran's initial period of active service, his Navy Reserve records show that the Veteran reported hurting the small of his back in 1964 while working in a station and falling off of a tire rack. The examiner noted back trouble, 1964, lumbosacral strain. Records also show that the Veteran complained of sharp pain in the lumbar area of back, causing shortness of breath, in August 1965. Examination at that time revealed acute pain on stretching of left back muscle below rib cage. No muscle spasm was noted. During an April 2011 VA examination, the Veteran reported the in-service tractor-trailer accident and the injury to his back. He reported that the injury seemed to improve, but that over time he has had increasing pain in his low back. Following examination, the April 2011 examiner opined that the Veteran's present condition was less likely than not caused by or a result of active service, and noted the 36-year gap between the original injury and current diagnosis and surgery, without any evidence of medical treatment for a low back condition, in support of the opinion. The examiner did not address whether a pre-existing lumbosacral strain, noted in 1964, was aggravated during the Veteran's active service. Under these circumstances, the Board finds that an addendum opinion is needed to determine whether a low back disability was aggravated in service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain copies, from the Social Security Administration, of any determination on the Veteran's claim for disability benefits (to include any readjudications) and the medical records used as a basis of the award, and any recent evaluations. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain the Veteran's VA treatment records for a low back disability, to include degenerative lumbar disc disease status-post laminectomy, that date from April 2013. 3. Thereafter, return the claims file to the April 2011 examiner (or, if that examiner is unavailable, a suitable substitute) to provide an addendum opinion. (a) State whether it is clear and unmistakable (obvious, manifest, and undebatable) that a low back injury/disorder pre-existed the period of active service from July 1965 to April 1967. (b) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing injury/disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. (c) State whether it is clear and unmistakable (obvious, manifest, and undebatable) that a low back injury/disorder pre-existed the period of active service from March 1969 to November 1969. (d) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing injury/disorder WAS NOT aggravated (i.e., permanently worsened) during that period service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. (e) If it is determined that the claimed disability did not exist prior to service, the examiner should offer an opinion as to whether it is at least as likely as not related to either period of active service, to include the December 1966 tractor-trailer accident noted therein. The examiner should provide a rationale for the opinions. If deemed necessary, the Veteran may be scheduled for further examination. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated, and the report of examination should note review of the claims file. 4. After ensuring that the requested actions are completed, the AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the AMC. The Veteran 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). _________________________________________________ S. S. TOTH 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).