Citation Nr: 1324019 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 11-07 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The September 2009 rating decision indicated that the scope of the claim was service connection for cervical spine and thoracic back pain. Review of the record indicates numerous current back diagnoses, including, but not limited to spondylosis, degenerative disc disease, arthropathy in the lower cervical spine, hemangioma, bulging discs, osteoarthritis, chronic lumbar strain, myofascial pain syndrome, and thoracic facet arthropathy. Accordingly, the Board has recharacterized the issue on appeal as service connection for a back disorder to better reflect the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (finding the Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such a file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Once the VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that a June 2011 VA examination is inadequate and remand is required to obtain a new examination. The Veteran seeks service connection for a back disorder, which he claims originated as a result of an injury he sustained in service, while off-loading ammunition pallets. The Veteran's service treatment records (STRs) show that an event occurred in 1969 in which the Veteran sought treatment after his foot was pinned "by PSP." However, the STRs make no mention of a back injury at that time. The Veteran's August 1970 separation examination noted a normal spine and neck. VA records first document complaints of back cramping in July 2007. Medical records dated from July 2007 to March 2012 indicate numerous back diagnoses. The Veteran was afforded a VA spine examination in June 2011. The examiner reviewed the Veteran's claims file and interviewed the Veteran. After examination and spinal imaging, the examiner confirmed a diagnosis of DDD of the cervical, thoracic, and lumbar spines, and opined that the Veteran's DDD was less likely than not caused by or the result of an injury in service. In support of his position the examiner cited the common occurrence of DDD in the aging population, the lack of reference to a spine injury while in service, and the 37 year gap from separation of service to the Veteran's first recorded back problems in 2007. The examiner also stated that this 37 year gap made it impossible to track the Veteran's symptoms from his active military duty to the present in order to establish causality. First, the examination is inadequate because the examiner only provided an opinion regarding DDD, thus ignoring the numerous current back diagnoses. Second, the examiner did not give proper consideration to the Veteran's claim of in-service injury. The Veteran is competent to report on events which have happened in service. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Further, the STRs confirm the incident, although not a back injury. The Veteran should be afforded a new examination and the examiner should evaluate and provide an opinion for service connection with regard to each of the Veteran's current back disorders and with consideration of the Veteran's statements. Additionally, the most recent records in the Veteran's file are VA medical records sent to the Board by the Veteran dated March 2012. As this case is being remanded for a new VA examination and there is a possibility that there are outstanding medical records in this case, such records should be obtained on remand. Any missing records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete appropriate release forms to allow VA to request and associate with the file his treatment records from any relevant treatment providers who have treated his back disorders. After securing any necessary authorization from the Veteran, the RO should obtain all identified records not already contained in the claims file, to include any private treatment records, VA treatment records dated March 2012 to the present, and any missing VA treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, request a new VA spine examination to determine the nature and etiology of all the Veteran's back disorders. The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. Specifically, after reviewing the entire case, the examiner should express an opinion on the following questions: For each currently diagnosed back disorder, including, but not limited to spondylosis, degenerative disc disease, arthropathy in the lower cervical spine, hemangioma, bulging discs, chronic lumbar strain, myofascial pain syndrome, and thoracic facet arthropathy: (1) is the diagnosis accurate and current, and (2) if the back disorder remains a current diagnosis, then is it at least as likely as not (a 50 percent or greater probability) that it is related to the Veteran's active military service? In reaching an opinion, the examiner should address the Veteran's competent lay statements regarding the in-service event and observable symptoms of his back disorders. Any opinion expressed by the examiner must be accompanied by a complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself (because he does not have the needed knowledge or training). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's back disorder claim, should be readjudicated based on the entirety of the evidence. If the report is deficient in any manner, it should be returned to the examiner by the RO. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran 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). _________________________________________________ K. MILLIKAN 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).