Citation Nr: 1324312 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-16 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1970. This matter 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 Oakland, California. 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 claims that a low back disability is related to back pain he had during service. He asserts that he has experienced recurrent back pain since service. The April 1968 entrance examination shows that the Veteran reported backaches with heavy work. The clinical evaluation of the back was normal. In July 1968, the Veteran reported a history of an auto accident 2 years earlier and a history of chronic low back pain was noted. The physical examination of the back was normal. Upon separation from service in June 1970, the Veteran reported a history of recurrent back pain. He reported that he had back trouble since a car accident in 1963. The clinical evaluation of the back was normal. The Veteran had a VA examination in September 2009. The RO requested that the examiner address the questions of whether a current back disability is related to complaints and treatment in service and whether a pre-existing back disability was aggravated by service. The examination report indicates that the Veteran reported that he was treated at Kaiser for his back condition. The Veteran reported that he had an MRI at Kaiser about one a half years prior. The VA examiner indicated that the claims file was reviewed, but none of the Kaiser records were available for review at the time of the examination. The VA examiner diagnosed lumbar strain with degenerative disc disease. The VA examiner opined that he could not provide an opinion with regard to whether the Veteran's low back pain was caused by service without resorting to speculation. With regard to whether the Veteran's low back condition was aggravated by military service, the VA examiner indicated that the question could not be answered without speculating. The VA examiner stated that the Kaiser records needed to be reviewed to determine the accuracy of the Veteran's history, and the Veteran would need to get records of his recent MRI and lumbar x-ray in order to understand his history and findings. The Board finds that a pre-existing back disability was not noted at entry into service. Therefore, the question for consideration by the examiner is whether there is a current back disability that was incurred in service. The claims file contains treatment records from Kaiser Permanente, dated from 2001 to 2008. The Board finds that the September 2009 VA examination is not adequate, as it was not based upon a review of all of the available records pertaining to the Veteran's low back disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that a remand is warranted in order to obtain an addendum opinion from the 2009 VA examiner based upon a review of the entire claims file. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the physician who performed the September 2009 VA examination. If the September 2009 examiner is not available, another qualified physician should provide the addendum opinion. The VA examiner should review the entire claims file, including the treatment records from Kaiser Permanente. The VA examination report should indicate that the claims file was reviewed. For purposes of this opinion, the examiner should assume that the current back disability did not pre-exist entrance into active service in June 1968. After a review of the claims file, the examiner should set forth an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) the current lumbar spine disability had its onset in service or is otherwise related to service? The VA examiner should provide a detailed rationale for the opinions stated. If an opinion cannot be provided without resort to speculation, the VA examiner should explain why an opinion cannot be provided. 3. Following the completion of the requested development, the AOJ should then readjudicate the issue on appeal. If the benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 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 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. J. ALIBRANDO 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).