Citation Nr: 1324071 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 04-21 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1974 to August 1978 and from May 1980 to January 1986. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from an April 2004 rating decision of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a low back disability. In a decision issued in October 2011, the Board upheld the RO's denial of service connection for a low back disability. The Veteran appealed that decision to the Court. In February 2013, the Court issued a memorandum decision that vacated the October 2011 Board decision with regard to that issue and remanded the matter on appeal for readjudication consistent with the instructions outlined in the memorandum decision. In its October 2011 decision, the Board also denied a compensable rating for bilateral hearing loss; the Veteran did not appeal that matter to the Court. Consequently, that matter is not before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The appeal is REMANDED to the RO. VA will notify the Veteran if action on his part is required. REMAND On February 2004 VA examination of the Veteran's lumbar spine, the diagnoses were L3-L4 degenerative joint disease (DJD) and degenerative disc disease (DDD) with L4 compression fracture. The examiner opined that, upon review of the Veteran's service treatment records (STRs), it was not likely that his lumbar strain in service (in July 1980) was the cause of his current low back condition. The examiner noted that the July 1980 lumbar strain in service produced no palpable spasms, that the treatment for such consisted only of aspirin and local heat (with no follow-up required), and that there was no record of subsequent complaints and/or treatment for this incident. The examiner opined that, had there been significant back injury sufficient to produce L4 compression fracture, it was likely that the objective findings in July 1980 would have been positive and that the Veteran would have required a scheduled follow-up and more specialized treatment measures (such as muscle relaxants and therapy). As the Court's decision notes, the February 2004 VA examiner opined only as to the etiology of the Veteran's L4 compression fracture, and did not opine as to the etiology of the Veteran's L3-L4 DJD and DDD. Consequently, the opinion and the examination are inadequate, and another examination to secure an adequate opinion is necessary. In addition, the most recent VA treatment records in the claims file are dated in March 2007. As reports of ongoing VA treatment are constructively of record (and are likely to contain pertinent information), they must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his low back disability since March 2007. If any records requested are unavailable, the reason must be explained for the record (and the Veteran should be notified). 2. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of any current low back disability. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each disability entity of the low back found. If no low back disability is diagnosed, please reconcile that conclusion with the medical evidence of record cited above. (b) As to any/each low back disability entity diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service? The examiner must specifically consider and address the relevant findings documented in the Veteran's STRs (to include low back pain and muscle strain), as well as the Veteran's military duties (to include cleaning out aircraft fuel tanks with a high-pressure hose while hanging from a safety harness). The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 3. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claim on appeal. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ GEORGE R. SENYK 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).