Citation Nr: 1323515 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-03 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 16, 1984 to March 15, 1989; from May 11, 2006 to September 26, 2007; and during the pendency of this claim for a period beginning on September July 30, 2009. The Army Order directing the Veteran to active duty on July 30, 2009 indicates that he was ordered to active duty for one year ending on July 29, 2010; however, there is no official record, DD Form 214 or otherwise, to confirm this period of service. This case is before the Board of Veterans' Appeals (Board) on appeal from July 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the July 2008 rating decision, the RO, in pertinent part, denied claims of service connection for lumbar arthralgia, right and left knee disabilities, and a left elbow disability. The following month, the Veteran submitted new and material evidence with respect to his claims; therefore, his claims were readjudicated in a February 2009 rating decision. In that decision, the RO confirmed and continued the previous denials of service connection. The Veteran's timely Notice of Disagreement (NOD) was received at the RO in March 2009 and his substantive appeal (VA Form 9) was received at the RO in January 2010, within one year from the date of notice of the February 2009 rating decision. The VA Form 9 reveals that the Veteran requested to appear for a Board hearing at the RO, in lieu of a hearing before an RO decision review officer (DRO). The Veteran later withdrew his request for a hearing in correspondence dated September 2011. In a September 2012 rating decision, the RO granted service connection for left elbow lateral epicondylitis with limitation of extension (left elbow injury); limitation of flexion of the left forearm; and, right and left knee patellar tendinitis with degenerative joint disease. As these grants of service connection represent a full grant of benefits sought on appeal with respect to the issues of service connection for a left elbow disability, a left knee disability and a right knee disability, they are no longer in appellate status or before the Board. Thus, the only remaining issue on appeal at this time is that of entitlement to service connection for lumbar arthralgia, which has been recharacterized as shown on the Cover Page to a low back disability so that all potential back conditions may be considered with respect to this claim. 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 Veteran seeks service connection for a low back disability. He contends that he developed back pain in service when he was deployed to Iraq and/or Kuwait. Significantly, the Veteran filed his claim of service connection for, inter alia, a low back disability within one year of his discharge from a period of active service ending in September 2007; and, he was ordered to active duty during the pendency of the appeal, beginning in July 2009. It is not clear when the Veteran's period of active duty beginning in July 2009 ended, and/or whether any STRs were generated during this time period. As these issues could have a potential affect on the outcome of this claim, clarification and service verification is necessary. The Veteran's back was examined in February 2008 and the VA examiner characterized the claim as one for service-connected lumbar arthralgia, the same diagnosis provided on the Veteran's original claim of January 2008. The examiner was not provided with the claims file or service treatment records (STRs) and the RO later made a formal finding of unavailability of STRs. The examiner noted the Veteran's report of back pain in service and current pain across the lower back. The physical examination was essentially negative with range of motion within normal limits. The diagnosis was "mechanical lumbosacral spine without evidence of radiculopathy." A January 2008 post-deployment health assessment provided by the Veteran also notes his complaints of back pain, but there is no indication as to whether the Veteran's lumbar spine was examined. Finally, an October 2010 VA examination of the cervical spine notes that there is also objective evidence of pain on active motion of the thoracolumbar spine; but the examiner did not provide any diagnosis with regard to the lumbar spine because the examination was scheduled for the purpose of assessing the severity of the service-connected cervical spine disability, and the examiner was not directed to exam or address the thoracolumbar spine. Not only is there no clear diagnosis with respect to the Veteran's lumbosacral spine, but no examiner has provided a nexus opinion. Although it appears that the diagnosis in February 2008 should have read mechanical lumbosacral pain, or strain, it is not entirely clear whether the Veteran has any chronic disability related to the low back. The examination report notes that x-rays of the lumbar spine were taken, but there is no report currently associated with the claims file or the Veteran's Virtual VA Folder (VVA). This is significant because he filed his claim within one year following discharge from service, creating a possibility of entitlement to service connection on a presumptive basis under 38 C.F.R. § § 3.307, 3.309(a) if a chronic lumbosacral spine disorder, such as arthritis, is present to a disabling degree of at least 10 percent. Moreover, the Veteran appears to have had a period of active duty after the February 2008 examination was provided but there was no attempt to verify the active duty dates or obtain any STRs generated during that time period. As such, a VA orthopedic examination should be scheduled to determine the current nature and likely etiology of any diagnosed back disability, to include any back disability that may have been incurred during his deployment in 2009. In this regard, the Veteran should submit all private treatment records (or proper authorization for VA to obtain the same) related to the lumbar spine. Before the case was certified to the Board on appeal, the RO issued a supplemental statement of the case (SSOC) in July 2012. However, it is unclear whether the Veteran ever received it. The claims file shows that at least two attempts to mail the SSOC were returned as undeliverable, possibly because they were sent to the wrong address. The Veteran's current address is listed on May 2013 correspondence from the Veteran to the RO. The Veteran submitted the May 2013 statement to the RO, but there is no indication that it was considered by the RO because there is no subsequent SSOC in the claims file. Although these errors are not prejudicial to the Veteran at this time because the case is being remanded back to the RO for additional development, the Veteran's correct address should be noted. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate source(s) to confirm the Veteran's active duty dates beginning in July 2009, and obtain and associate with the claims file any STRs generated during that time period. 2. Obtain and associate with the claims file or the Veteran's VVA folder all VA records pertaining to the Veteran not currently of record. 3. With appropriate authorization from the Veteran, obtain and associate with the claims file all pertinent private treatment records identified by the Veteran that have not already been obtained. 4. After completion of # 1, 2, and 3 above, schedule the Veteran for a VA spine examination with a physician to determine the current nature and likely etiology of any lumbar spine disability. The entire claims file (to include any pertinent medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. All indicated tests should be completed. In particular, this should include an x-ray of the lumbar spine and any other scans deemed necessary. The examiner should provide the Veteran with an opportunity to explain the history of his injuries, symptoms, and in particular the onset of symptoms. The examiner is asked to express an opinion as to whether the Veteran has a current chronic lumbar spine disability, including at any time since service, and whether any current lumbar spine disability is at least as likely as not (i.e., 50 percent or greater possibility) related to the Veteran's military service, to include whether a back disability arose during any period of active duty, including the period beginning in 2009 during the pendency of the claim. In that regard, the examiner's attention is directed to the Veteran's self-reported history regarding the onset of back pain. The examiner should also comment on whether the objective findings on examination(s) summarized above are consistent with the Veteran's reported history. The examiner must provide a complete explanation for any stated opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Ensure that the above directives have been properly completed. If the examination report(s) are insufficient, it should be returned to the examiner for corrective action. Thereafter, take any other development action deemed warranted and then readjudicate the Veteran's claims. If the action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case sent to the most recent address of record - see May 2013 correspondence from the Veteran and afforded an appropriate opportunity to respond before the case is returned to the Board. 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). _________________________________________________ BETHANY L. BUCK 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).