Citation Nr: 1319720 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-25 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from May 1968 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied entitlement to service connection for low back disability. The Veteran and his spouse provided testimony during a videoconference hearing before the Board in April 2013. A transcript has been associated with the virtual claims file. Although the Veteran filed a notice of disagreement regarding other issues adjudicated in the June 2008 rating decision, he only perfected an appeal of the low back disability issue. The RO mistakenly listed an issue regarding an increased rating for a skin disability in a September 2009 and January 2010 supplemental statement of the case (SSOC). However, the RO identified the issue and sent a correction letter in September 2010 explaining that he had not perfected an appeal of the skin disability issue. The RO explained that the issue would not be considered further and the issue was not listed in a subsequent SSOC or certification of appeal. The Veteran did not make any further argument regarding an appeal of the skin disability rating; therefore, the Board has determined that the issue is not on appeal. 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 Under the Veterans Claims Assistance Act (VCAA), VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran has been diagnosed with degenerative disc disease, degenerative joint disease, and spondylosis with symptomatic facet arthropathy, each of the lumbar spine. He, his spouse, and his brother have submitted lay statements regarding the incurrence of this disability as a result of military service as a truck driver and a gradual increase of low back pain since. He and his spouse testified before the Board that they thought the disability began during service, that he sought treatment at a private hospital in Germany at the time, and that the disability gradually progressed to the current state. Moreover, his treating VA physician stated in June 2009 that it is possible that the disease process leading to his current back disabilities began during service. It appears that the VA physician did not have the benefit of reviewing the evidence of record, including service treatment records, and instead, was relying on the Veteran's reports. In addition, the opinion was of a possible nexus, not that the current back disabilities were at least as likely as not connected to service. Service treatment records document one complaint in January 1969 of "back aches, one day." There was no tenderness or loss of motion and the impression was of a possible strain. There is no other evidence of back pain in the service treatment records. In fact, his April 1971 separation examination of the spine was normal and the examiner wrote in the notes section, "I feel outstanding. Good!!" The first evidence in the claims file documenting back pain is a VA treatment record dated in May 2002. The Veteran filed the current claim for service connection in October 2006. He has reported employment as a truck driver from January 1999 to January 2000 and a March 2004 VA treatment record noted that he was a truck driver at that time. The Veteran received a VA examination in September 2009, where the claims file was reviewed. The examiner noted the single episode of back pain during service, the normal separation examination, and the 35 year gap between service and the first lumbar spine abnormality found upon MRI in 2005. The examiner stated that there was no nexus of chronicity to connect the current back condition to his in-service back pain. However, the Board notes that the examiner did not consider the lay evidence asserting chronic symptoms since service and did not comment on the VA physician's June 2009 opinion. The Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). Based on the foregoing, the Board finds that a new VA examination must be provided in order for the claim to be properly adjudicated. Further, the Board notes that during his hearing, the Veteran reported relevant treatment at a private German hospital during service. He has not identified the name or dates of such treatment, so an attempt to obtain those records cannot yet be made. The Veteran should be sent a letter requesting that he identify and provide any necessary releases for this private treatment, according to the procedures outlined in 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran identify the name and approximate dates of treatment for all private treatment, including the German hospital he discussed during the Board hearing. He should be asked to provide the necessary release(s) authorizing VA to obtain all records of private treatment. If the Veteran fails to provide the necessary information or complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 2. Once the above development has been completed, provide the Veteran with a VA spine examination with a qualified physician to determine whether any current disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any lumbar spine disability, to include degenerative disc disease, degenerative joint disease, and spondylosis with symptomatic facet arthropathy, had onset in service or is otherwise related to a disease or injury in service, including his service as a truck driver. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 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 2002 & Supp. 2012). _________________________________________________ Thomas H. O'Shay 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).