Citation Nr: 1320543 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-47 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a lumbar/thoracic back condition, to include degenerative joint disease and arthritis, and to include as secondary to service-connected recurrent lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served in the Marine Corps Reserves with active service from October 14, 2003 to April 15, 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. 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 The Board sincerely regrets the additional delay in adjudicating the Veteran's claim for service connection for a lumbar/thoracic back condition, to include degenerative joint disease and arthritis, and to include as secondary to service-connected recurrent lumbar strain. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. The Veteran essentially contends that he has a lumbar/thoracic back condition, to include degenerative joint disease and arthritis, related to holding up lockers and rifles for long periods during active service (see February 2008 statement), and/or which is caused or aggravated by his service-connected recurrent lumbar strain. As to obtainment of additional treatment records, the Board notes that the Veteran's service treatment records contain authorization to obtain private treatment records dating since 2001 from Dr. JEK, D.O., related to treatment for a sports-related back injury prior to service. In response, Dr. JEK submitted only a pre-service report of a thoracic spine x-ray, which indicates that it was performed due to history of back pain and was read as normal. To obtain a complete history of the disability claimed on appeal, Dr. JEK should again be requested to provide all clinical treatment records and diagnostic imaging reports pertaining to a sports-related back injury dating since 2001. Post-service private treatment records from Dr. JEK further indicate that the Veteran has sustained at least two post-service back injuries while working as a postal carrier for the United States Postal Service since at least January 2005. Specifically, a treatment record dated on May 24, 2005 shows that the Veteran experienced lumbar complaints since four days prior after lifting a 60 to 70 pound bag of mail on May 20, 2005. Diagnostic assessment on May 24, 2005 was low back pain with somatic dysfunction in the rib cage and cervical, thoracic, and lumbar regions. Also, a treatment record dated on January 28, 2008, indicates that the Veteran complained of low back pain with onset on January 18, 2008 when he fell while working as a letter carrier. Diagnostic assessment on January 28, 2008, was low back pain with somatic dysfunction in the thoracic, lumbar, and pelvic regions. In May, June, and September 2009, the Veteran was requested to provide information and evidence pertaining to the aforementioned post-service work-related injuries, and whether or not a worker's compensation claim was filed regarding those injuries. He was also requested to provide authorization sufficient to enable VA to obtain private treatment records from Dr. JEK pertaining to his pre-service sports-related back injury as alluded to in an October 2003 authorization form during service. To date, the Veteran has not responded. Accordingly, the Veteran should again to be requested to provide this information and evidence. He is to be advised that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). Private treatment records received from Dr. JEK also indicate that he referred the Veteran to an unknown provider for physical therapy for treatment and evaluation of back complaints in or around June 2005; to Dr. DK in Lewiston, Maine, for evaluation and treatment of left thoracic spine pain and scoliosis in November 2008, and; to Mercy Pain Clinic in February 2009 for low back and thoracic spine pain for consideration of epidural steroid injections. There is no indication that the aforementioned treatment records have been received or requested for review. Thus, they should be requested on remand. Ongoing treatment records should also be requested from Dr. JEK dating since February 2009. As to an additional examination and/or opinion, the Veteran was afforded a VA spine examination in February 2008 to determine whether he had any "arthritis changes" in his low back, and if so, whether it is secondary to his service-connected lumbosacral strain. The examiner noted that during prior VA examination in June 2004, the Veteran developed low back pain during basic training on a long forced march with full gear. He continued to have back problems since discharge which had intensified, usually with prolonged standing. History of positional trauma was denied. The Veteran indicated that his back could be fairly sore at the end of a long work day as a mail carrier at the United States Postal Officer where he had been employed since 2 years prior. Prior dorsal spine films were negative. The examiner diagnosed chronic thoracolumbar strain and mild discogenic disease at the L5-S1 level as shown on x-ray examination on the lumbar spine. Following physical examination and interview of the claims file and the Veteran, the examiner opined that discogenic disease at the L5-S1 level presented on x-ray examination of the lumbar spine are as likely as not unrelated to his service-connected thoracolumbar spine strain. He reasoned that there is no evidence of degenerative changes at the time of the Veteran's discharge from service and he suffered no traumatic event during service other than what occurs during normal training. In a May 2009 and March 2010, the Veteran submitted a duplicative undated etiological opinion from his private physician, Dr. JEK, D.O., who opined that there is a clear correlation between an unspecified injury suffered during the Veteran's active military service and current back pain which had been diagnosed as a herniated disc at T10-11. He reasoned that the Veteran sustained injury to his back during service and back pain had continued since his discharge. He indicated that a finding of a herniated disc at T10-11 is the area of his primary complaint of pain, which had been consistent with the area injured during active service. During the course of daily activities over the past several years, the Veteran had suffered several exacerbations of back pain due to "the underlying injury." While x-rays and other studies had been negative for the presence of an osseous (bone) injury, the presence of the herniated disc in the area "of his initial injury" speaks volumes. He explained that there are many factors involved in disc herniation, which is a soft tissue injury that allows for disc material to protrude from the normal space. He stated that while the Veteran's herniated disc does not appear to be pressing on the spinal cord, the fact that it is present points to the fact that the injury was sufficient to damage the underlying soft tissue. Based on the Veteran's course since the original trauma while on a forced march, his consistent and unwavering reported pain pattern, his failure to achieve relief from multiplicity of treatments provided from a wide variety of providers, and lack of availability of test or measurement to quantify pain from a soft tissue injury, it was his opinion that the Veteran undoubtedly sustained injuries to surrounding soft tissues in the thoracic and paraspinal tissues. He further stated that in view of its persistence, the soft tissue injury is not likely to ameliorate with time. On review of these opinions, however, it remains unclear whether the Veteran had a back condition that clearly and unmistakably existed prior to service and was aggravated therein, or whether he has a current back condition, to include degenerative joint disease and arthritis, that may have been incurred in or aggravated by service or his service-connected recurrent lumbar strain. Specifically, private treatment records received since the February 2008 VA examination show diagnoses of additional back conditions that were not considered during the February 2008 examination. Moreover, although a favorable opinion was received from Dr. JEK in 2009, it remains clear that the Veteran sustained a pre-service sports related injury sometime between 2001 and 2003, which was persistent enough to warrant x-ray examination of the thoracic spine prior to service in June 2003. Accordingly, there are questions as to the credibility of Dr. JEK's statements referring to the "original injury" as injury due to a long forced road march during service. Indeed, the Veteran complained of upper back pain within only days of starting recruit training and his service treatment records indicate that he explicitly denied any history of injury or trauma related to such complaints. Accordingly, a new VA examination and medical opinion is warranted to reconcile the conflicting evidence and opinions of record. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for any back condition prior to and since his discharge from active service in April 2004, to specifically include any private treatment records from Dr. JEK dating from 2001 to 2003 for a sports-related back injury as alluded to during service, and since February 2009; any physical therapy treatment as alluded to by Dr. JEK in treatment records dated in June 2005; Dr. DK located in Lewiston as alluded to in a November 2008 treatment note, and; Mercy Pain Center as alluded to in a February 2009 treatment note. After the Veteran has signed the appropriate releases, if any, those records should be sought. All attempts to obtain records should be documented in the claims file. 2. Request from the United States Postal Service, and the Maine Worker's Compensation Board, if indicated, any employment, medical, and other relevant records pertaining to the Veteran and work-related back injuries sustained on or around May 20, 2005 related to lifting a 60 to 70 pound mail bag, and on or around January 18, 2008 related to a fall while working as a letter carrier. If the RO/AMC cannot locate the requested federal records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate VA examiner to determine the nature and etiology of any thoracic and lumbar back condition diagnosed on examination and in treatment records dating since the claim for service connection was received in February 2008, taking into account both medical evidence and lay testimony from the Veteran as to the progression of the claimed disability. The examiner should review the claims file, to include any relevant records in Virtual VA, and a copy of this REMAND in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must address the following inquiries: a) Identify any thoracic and lumbar back condition that is (1) shown on examination or (2) indicated by the record at any time since February 2008. b) For each lumbar and thoracic back condition identified, please: (i) provide an opinion as to whether it clearly and unmistakably existed (i.e. it is undebatable) prior to the Veteran's entrance into active service (October 2003 to April 2004), and (ii) if so, whether it clearly and unmistakably was not aggravated beyond the natural progression of the condition during service. The examiner should acknowledge and discuss a June 2003 report of x-ray of the thoracic spine and an October 2003 service record pertaining to a pre-service sports-related injury. c) For each lumbar and thoracic back condition that did not clearly and unmistakably exist prior to service, please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such diagnosis is etiologically related to injury, illness or event during active service. d) For each lumbar or thoracic condition that has no direct relation to service: (i) is it at least as likely as not that the current lumbar or thoracic back condition was caused by his service-connected recurrent lumbar strain? (ii) If not caused by the service-connected recurrent lumbar strain, is it at least as likely as not that the current lumbar and/or thoracic back condition was aggravated (meaning permanently worsened beyond its normal progression) by service-connected recurrent lumbar strain? (If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the lumbar or thoracic back condition by the service-connected recurrent lumbar strain.) Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. The AMC/RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 6. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. 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 Supp. 2012). _________________________________________________ DAVID L. WIGHT 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).