Citation Nr: 1319495 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 08-27 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1979 and had subsequent periods of active duty for training. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by a Regional Office (RO) of the Togus, Maine Department of Veterans Affairs (VA). The Veteran and his mother presented testimony during a hearing at the RO in October 2008, and a transcript of the hearing is associated with his claims folder. In February 2010, the Board remanded the case to the RO, and in May 2011, the Board denied the claims. The Board's May 2011 decision was appealed to the United States Court of Appeals for Veterans Claims (Court), which issued a December 2012 Order in which it vacated the May 2011 Board decision and remanded the case to the Board for further development. 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 In a December 2012 Memorandum Decision, which vacated the Board's May 2011 decision, the Court found, among other things, that the Board's May 2011 decision regarding the Veteran's back disability claim required another VA examination, and that the claim for service connection for a psychiatric disorder is inextricably intertwined with the back claim. Regarding the back disability claim, the Court noted that in February 2010, the Board had found an April 2009 VA examination report inadequate, and then remanded for a better examination. Specifically, the Board had remanded to have an examiner consider the Veteran's reports of an in-service injury, his testimony suggesting a possible continuity of symptomatology, a 1985 history, and a favorable private medical opinion of record. The Court noted that the January 2011 VA medical opinion which resulted from the remand was essentially a verbatim copy of the April 2009 VA examination report, without any consideration of the information which the Board had asked the examiner to consider in its February 2010 remand. The Court found that the Veteran has a right to compliance with the Board's February 2010 remand orders, citing Stegall v. West, 11 Vet. App. 268 (1998). The Court indicated that another VA examination should be conducted, by an examiner other than the physician who provided the April 2009 and February 2010 opinions, to address the evidence and answer the questions posed in its February 2010 remand order. The Board notes that when the Veteran was examined by Dr. Julie Long in June 2003, he brought "x-rays from Calais Regional Hospital from 12-30-85." See June 10, 2003, private medical record. Thus, it would appear that the Veteran has these x-rays in his possession, and the Board will request that when the Veteran is examined by VA that he provide the examiner with the x-rays. The Veteran is asked to cooperate in this endeavor. On this note, this also means that the Veteran was likely treated at that time by either that hospital or some physician, as x-rays were ordered, and they are usually ordered by a medical professional because of complaints the patient is having. Thus, the Veteran is requested to provide VA with the name and address of the facility that ordered the x-ray back in 1985. This would be very helpful to VA, and the Veteran is asked to cooperate in this endeavor as well. Accordingly, the case is REMANDED for the following action: 1. The Veteran should provide VA with permission to obtain any private treatment records related to back pain in approximately 1985 (which treatment likely prompted the conduction of a December 30, 1985 x-ray at Calais Regional Hospital) or he may provide the records himself. 2. The Veteran is requested to bring the December 30, 1985, x-ray of his spine from the Calais Regional Hospital when he goes to the VA facility for his scheduled examination. 3. The Veteran should be scheduled for a VA back examination by an orthopedist, other than the physician who rendered the April 2009 and January 2011 medical opinions. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All current disabilities of the spine should be clearly reported. The examiner should be provided with a copy of the following facts: * The Veteran served on active duty from August 1975 to August 1979. * The service treatment records are in the white envelope in Volume 1 at the bottom of the claims file. The Board has attempted to place these records in chronological order. Every document it cites to below is marked with a blue post-it note. * In September 1977, the Veteran was seen by a medical officer, who found the Veteran to be unresponsive to verbal stimuli. The medical officer noted that the Veteran had had a recent history of heavy work in the fire room, but no exposure to toxic chemicals. The medical officer's impression was that the Veteran was depressed. * In an entry the following day, the examiner noted that the Veteran had recently had "bad news from home." Physical examination of the extremities was normal. * In a September 1977 Physical Examination, it shows that examination of the "(17) Back" and "(18) Extremities" were "clear." * In a Clinical Record ("History-Part 1") from September 1977, the examiner wrote that the Veteran was in good health until three days prior to admission when he "began feeling very frustrated, but didn't know why. He felt people were talking about him." * In a Clinical Record ("History-Part 2") from September 1977, when reporting the Veteran's past history, the examiner wrote, "No serious illness" and that the Veteran had the usual child diseases without sequelae. * In the Narrative Summary of his hospitalization from September 3, 1977, to September 13, 1977, it shows a finding that the physical examination was "Within normal limits." * In the September 15, 1977 Nursing Notes, the nurse wrote that the Veteran complained of a stomach ache. * In a September 15, 1977 entry, the examiner wrote that the Veteran attributed the decompensation to excessive drinking. * In a separate September 15, 1977, entry, the examiner addressed the Veteran's medical history and noted there was no recent operation or head injuries. * In an undated report from the Naval Regional Medical Center, it shows a finding that, "History of the present illness revealed that the patient had experienced increasing stress from difficulty getting along aboard hi[s] ship. He drank excessively, and became progressively disorganized." * An August 1979 Report of Medical Examination, which was performed at service discharge, shows that clinical evaluations of the spine and musculoskeletal system were normal. * A February 1982 Report of Medical Examination shows that clinical evaluations of the spine and musculoskeletal system were normal. * In a February 1982 Report of Medical History completed by the Veteran, he denied ever having or having then, "Recurrent back pain." He was also asked if he ever had any illness or injury other than those already noted, and he checked "No." * A March 1983 record shows that the Veteran signed the following certification: "I certify that to the best of my knowledge, I have suffered no injuries or disease during this period of [active duty for training]." * An August 1983 Report of Medical Examination shows that clinical evaluations of the spine and musculoskeletal system were normal. * In an August 1983 Report of Medical History completed by the Veteran, he denied ever having or having then, "Recurrent back pain." He was also asked if he ever had any illness or injury other than those already noted, and he checked "No." * A January 1985 Report of Medical Examination shows that clinical evaluations of the spine and musculoskeletal system were normal. * In a January 1985 Report of Medical History completed by the Veteran, he checked "yes" to ever having or having then, "Recurrent back pain." The examiner noted that the Veteran had recurrent low back pain with radiation to "above pubis." This was reported approximately five and one-half years following service discharge. * There is a December 30, 1985 x-ray of the Veteran's spine that the Veteran showed to a private physician. The Board has asked the Veteran to provide the VA examiner with the x-ray. Thus, the examiner should check to see if the Veteran has brought the x-ray and is asked to review it. * Whether or not the Veteran has the x-ray with him, Dr. Julie A. Long in a June 10, 2003 medical record described her review of the December 30, 1985, x-rays as showing "a nearly normal disk at L4-5 and L5-S1." That is her interpretation of the x-ray report. This record is in Volume 2 and tabbed on the left in green with the applicable month and year. * In a June 2004 Independent Medical Examination, Dr. Matthew J. Donovan also saw the December 1985 x-ray, which he described as follows: "12/30/85 spot lateral with well-preserved disc at L4-5, L5 S1. No evidence of spondylolisthesis." He goes on to address other studies from 1999 through 2003. Under the History section, the examiner wrote, "Today [the Veteran] gives a negative prior history of low back pain, motor vehicle injury or loss from work secondary to back symptoms." Under "Diagnoses," the examiner wrote, "Lumbar spine degenerative disc disease with facet arthropathy with well preserved disc spaces noted on 12/30/85 and progression on 06/10/99. Further progression noted on review of 12/11/02 lumbar spine films.... These are consistent with an ongoing degenerative process in his lumbar spine." This record is in Volume 1 and tabbed on the left in green with the applicable month and year. * When the Veteran submitted a claim for Social Security Administration disability benefits in 2003, he was asked what illness, injury or condition limits his ability to work. The Veteran wrote, "Back injury." When asked when did the illness, injury or condition "first bother you," the Veteran wrote, "12-14-1998." This record is in Volume one and tabbed on the left in pink. * At an October 2008 hearing before a Decision Review Officer at the regional office, the Veteran testified that he injured his back while on a ship. He described hearing a crack and a pop, which caused him to drop to his knees and cause "excruciating pain." He stated that later on when he was lifting weights with a fellow service person, he heard another pop, which caused him to go down on his knees again. He stated it affected his head when the second incident happened and felt that his head was going to explode and that he mentally lost it. The October 2008 hearing transcript is in Volume 1 and is tabbed on the left in pink with the applicable date. The Veteran's description of the two injuries is on page 2. * The Board finds as fact that the Veteran had some sort of back pain around 1984/1985, as he reported it in the January 1985 Report of Medical History and he had an x-ray taken of his spine in December 1985. However, the Board finds that it is less likely that the Veteran sustained the 1977 injuries he describes at the October 2008 hearing, as the service treatment records from his September 1977 to October 1977 hospitalization are silent for a complaint of back pain. He claims that the pain he experienced from the first injury was "excruciating" and that he subsequently "mentally lost it." See October 2008 hearing transcript on page 2. However, when the Veteran provided multiple reasons to the medical professionals for his episode of mental disturbance, it never included a complaint of back pain. The September 15, 1977, "Nursing Notes" shows that the Veteran's complaints were of a "stomach ache." Had the Veteran been experiencing back pain at the time he was hospitalized, it would seem likely he would have reported pain in that location as well. Additionally, the Veteran denied recurrent back pain in February 1982 (more than 2 years after service discharge), March 1983 (more than 3 years after service discharge), and August 1983 (4 years after service discharge), and clinical evaluations of the spine and musculoskeletal system were normal in August 1979, February 1982, March 1983, and August 1983. His first complaint of recurrent back pain following service discharge was in January 1985 (more than 5 years following service discharge). It is for these reasons the Board finds it less likely that the Veteran sustained back injuries to his lower spine in August/September 1977. * While the Board has laid out multiple records to review, it requests that you review all the evidence in the claims file. The private medical records are tabbed in green. There are two VA examinations in April 2009 and January 2011, that have been found to be inadequate. These are tabbed in yellow. After reviewing the claims file and examining the Veteran, the examiner should respond to the following questions: (i) Is it at least as likely as not (a 50% or higher degree of probability) that any current back disability had its onset in active service; or is otherwise the result of disease or injury in service. (ii) If the answer to (i) is negative, would your answer change if you accepted as true the Veteran's report of the two in-service injuries to his spine? The rationale for all opinions expressed should be provided, and the January 1985 notation of a history of back pain should be addressed, as well as the December 1985 x-ray of the lumbar spine, whether the examiner reviews the x-ray or the interpretation from other examiners who have seen the x-ray. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted, and readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ Alexandra P. Simpson Acting 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).