Citation Nr: 1320737 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-07 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to July 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied service connection for COPD due to asbestos exposure, and service connection for degenerative disc disease L4-L5 and L5-S1 (claimed as a back injury). The Veteran testified before the undersigned at a March 2013 Travel Board hearing. The hearing transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND VA must make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and must assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that his current low back disability developed as a result of "over exhaustion, rough physical exercise, and heavy lifting of military weapons without proper medical attention or gear" during active service. The service medical records show that the Veteran was seen in December 1969 with complaints of back pain. He specifically complained of severe pain while bending. In January 1970, he complained of back pain since falling the day before. He was diagnosed with a back strain. In February 1972, he was seen with complaints of back pain for the past yep days, which he reported started while loading boxes on a truck. In June 1972, he complained of pain in the lower back for the past five days, and reported that his back had been aggravated by riding in trucks and picking up boxes. He reported that he had experienced low back pain since 1969. At the time of the Veteran's discharge examination in July 1972, he did not report back pain and no low back disability was diagnosed. The Veteran was provided an independent medical examination in June 2007 by T.M., M.D. of the Southwest Spine Center. The examination report indicates that the Veteran sustained a slip and fall injury at work in February 1995. It was noted that prior to the work injury, the Veteran reported aches and pains in his low back, but nothing significant. Following the work injury, he received private treatment, and was referred for a lumbar MRI in May 1995. The MRI results showed evidence of a very small disc bulge at L3-4, a large central disc herniation with extrusion causing a marked ventral impression in the central portion of the thecal sac and resulting in secondary spinal stenosis at L4-5, and degenerative changes with respect to the facet joints. Following the MRI, the Veteran was referred for lumbar epidural steroid injections, and treated with a spinal rehabilitation program at Backworks. The steroid injections and physical therapy did not relieve his symptoms. Consequently, in September 1995, he underwent an L4 laminotomy and excision of the L4-5 ruptured disc on the left. Following the surgery, he improved and reported that most of his leg pain had resolved. At the time of the examination, the Veteran was diagnosed with symptomatic lumbar degenerative disk disease at L4-5 and L5-S1 and probably L3-4, subarticular recess stenosis with disk protrusion at L4-5, foraminal stenosis L4-5, L5-S1, chronic axial low back pain, and chronic lumbosacral radiculopathy. Treatment records from Backworks show that the Veteran was seen in March 1995, complaining of low back pain following an injury at work about two months earlier. At that time, he reported having some minimal back pain since October 1994 following a lifting injury, but claimed he was able to deal with that pain. During private treatment in June 1995, the Veteran reported that aside from his on-the-job injury of February 1995, his only other back injury was 10 to 15 years before. Private treatment records from Dr. D.L. noted treatment for generalized back pain beginning in 1999. VA treatment records show that in January 2007, the Veteran reported a history of low back pain since his back surgery in 1996. Diagnosis was sciatica in the left posterior thigh. During VA treatment in August 2007, the Veteran reported that he initially experienced back pain during basic training in 1969, while holding a rifle in front of his body, and following that episode, he had several episodes of low back pain with radiation into the left leg. He reported further that his back pain gradually became more frequent and severe and in 1995, while working as a maintenance worker, he "greatly aggravated" the pain when he slipped and fell. The Veteran was provided a VA examination in September 2009 in response to his claim. The examiner noted the Veteran's reports of an initial back injury during active duty in 1969, where he fell trying to hold up a heavy weapon, and flare-ups of back pain every three months thereafter from 1969 to 1972. The Veteran also reported that his back condition was more severe since a February 1995 work injury, where he slipped and fell on his back. The examiner diagnosed degenerative disc disease, residuals of lumbar fusions, L3-L4, L4-L5, and L5-S1, and opined that the condition "was not caused by or a result of fall with heavy weapon during service physical training." The examiner's rationale was that a review of the service medical records showed that although the Veteran was treated several times for low back pain, the diagnosis was low back strain and there was no indication of herniated discs. The examiner also noted the Veteran's history of a post-service industrial accident with a diagnosis of a herniated discs resulting in surgery in 1995, and the physical examination, review of imaging results, and clinical experience. The Board notes that although the examiner concluded that the Veteran's current low back disability was not related to his reported fall with a heavy weapon during basic training, the examiner did not address whether the Veteran's disability was otherwise related to his active military service, including any of the other documented treatment for low back pain between 1969 and 1972. Therefore, the Board finds that the opinion is incomplete and does not contain enough information upon which to base a decision. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012). Once VA undertakes to provide a VA examination or obtain a VA opinion, it is obligated to ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, another examination and opinion is needed to determine the etiology of the Veteran's currently demonstrated low back disability. 38 U.S.C.A. § 5103A(d) (West 2002). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). The Veteran contends that he has a current diagnosis of COPD, as a result of exposure to asbestos while working in the boiler room, during active duty at Fort Gordon, Georgia. The Veteran's MOS indicates that he served as an avionics mechanic in the Army. However, there is no indication that the Veteran was exposed to asbestos or any caustic chemicals in service. Service treatment records are negative for any evidence complaints, treatment or a diagnosis related to COPD or any other pulmonary disability, and there was no diagnosis of COPD or any other pulmonary disability made at the time of the Veteran's discharge in 1972. Private treatment records from the Southeast Valley Medical Group show that in May 2003, the Veteran was noted to have a new diagnosis of COPD. The diagnosis was continued in 2004. The remaining private treatment records are negative for any evidence of COPD. VA treatment records note that the Veteran has a history of COPD, but they are negative for any evidence of a current diagnosis of COPD. During his March 2013 hearing, the Veteran testified that he had current worsening symptoms of COPD, and that he received medication for his COPD from the VA Medical Center. The Veteran testified that he was first diagnosed with COPD during private treatment at the Desert Samaritan Hospital in Mesa, Arizona around 1992, and that his private physician told him at that time that the disorder developed as a result of exposure to asbestos. The Board left the record open for 30 days after the hearing to allow the Veteran time to submit the reported treatment records. However, the records were not submitted and they are not currently associated with the claims file. The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available medical records that are not associated with the claims folder, a remand is required. 38 C.F.R. 3.159(c)(1) (2012). The factual issue in this case is whether the Veteran has a current pulmonary disability, specifically COPD, related to his active military service, and the private treatment records may contain information related to the onset, nature and etiology of the Veteran's pulmonary problems. Therefore, the records are potentially pertinent, and should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any additional VA medical records that may have come into existence since January 2011. 2. Obtain authorization from the Veteran s to obtain all records of treatment from the Desert Samaritan Hospital in Mesa, Arizona, or any other private medical treatment that the Veteran may identify. Inform the Veteran that he may obtain and submit the records himself. If the records are not obtained, the Veteran should be informed and provided the opportunity to submit them. 38 C.F.R. § 3.159(e)(2) (2012). 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disability. The examiner must review the claims file and must note that review in the report. The examiner should state whether the Veteran has any asbestos-related respiratory disability. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that any respiratory disability was incurred in or aggravated during the Veteran's service. 4. Schedule the Veteran for an examination to determine the nature and etiology any current low back disability. The claims folder must be made available to and reviewed by the examiner. Any indicated studies should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current low back disability is related to a disease or injury in service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. A complete rationale should be given for all opinions and conclusions expressed. The examiner should also discuss the Veteran's post-service back injuries in providing the opinion. 5. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).