Citation Nr: 1324635 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-14 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for back spasms. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from October 2006 to March 2010. He appealed to the Board of Veterans' Appeals (BVA or Board) from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, in support of his claim, he testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. During the hearing the Veteran withdrew his appeal of another claim, for service connection for sand blisters. 38 C.F.R. § 20.204 (2012). He clarified that he was not claiming entitlement to service connection for this disorder, only instead for his back spasms. This remaining claim for back spasms requires further development before being decided on appeal, however, so the Board is remanding this remaining claim to the RO via the Appeals Management Center (AMC) in Washington, DC. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The Veteran contends that he suffers from recurring back spasms that are the result of the heavy lifting and carrying of equipment he did during his military service. He asserts they began in 2007 when he was stationed in Iraq, that they were treated with Flexural and a light duty profile for about a month, and that they have persisted ever since. His service treatment records (STRs) confirm he sought treatment for back spasms, lumbar strain, low back sprain, as well as low back pain and stiffness. He since has had a VA medical examination in June 2010 following the filing of this claim. During that examination he reported experiencing back spasms since 2007 and indicated they had become increasingly worse. There was low and mid back pain. Thoracolumbar spine range of motion was from zero to 80 degrees. Extension was from zero to 35 degrees, flexion was from zero to 35 degrees bilaterally, and rotation was from zero to 45 degrees bilaterally. An X-ray of the lumbar spine was normal; however, the radiologist indicated there was probable lumbarization of the twelfth thoracic segment. The VA compensation examiner, a nurse practitioner, diagnosed a normal lumbar spine by examination and radiograph and concluded the problem associated with the diagnosis was back spasms. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion (sind bending) from zero to 30 degrees, and left and right lateral rotation (twisting) from zero to 30 degrees. See 38 C.F.R. § 4.71, Plate V (2012). As such, the RO sought clarification from the VA examiner regarding the Veteran's forward flexion, in particular, which was to 80 degrees during his VA examination (meaning to 10 degrees less than normal since his extension, lateral flexion and rotation all were greater rather than less than normal). In an April 2011 addendum, the VA examiner indicated that forward flexion to 80 degrees was a normal finding for this Veteran. The RO resultantly denied his claim essentially on the premise that he had not established he had an actual underlying disability to account for his complaints of back spasms and associated pain. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.") In his testimony during his March 2012 videoconference hearing before the Board, the Veteran steadfastly disputed this notion that he is not disabled because of these back spasms. And, as proof of this, he submitted additional evidence during his hearing to show he has the required current disability and refute the VA examiner's apparent conclusion that he does not. He also waived his right to have the RO, as the Agency of Original Jurisdiction (AOJ), initially consider this additional evidence, preferring instead to have the Board do so in the first instance. 38 C.F.R. §§ 20.800, 20.1304 (2012). These VA treatment records, which are dated since the June 2010 VA examination, reveal treatment for ongoing back pain and spasms. As well, the Veteran has been prescribed a VA-issued back brace. The RO's October 2010 rating decision, denying this claim, concluded the back spasms had resolved - at least, as mentioned, to the point the Veteran does not now have the required current disability. And this is the most fundamental requirement of any service-connection claim, else, there is no present-day disability to relate or attribute to military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this threshold minimum level of proof, there can be no valid claim). At the very least, he must establish he has had the claimed condition at some point since the filing of this claim. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, though, in preliminarily reviewing the evidence, including that submitted since and in direct response to the findings of the June 2010 VA examination, the Board finds that the examination report and April 2011 addendum are inadequate because they are equivocal. On the one hand, the VA examiner diagnosed a normal lumbar spine. On the other, she diagnosed lumbar spasms. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim; but, by the same token, it also cannot be used as grounds for denying a claim either. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Furthermore, the examination report is inadequate because it does not contain an opinion regarding the etiology of the diagnosed back spasms and because the examiner did not comment on the significance of the lumbarization of the 12th thoracic segment. See Nieves-Rodriguez, 22 Vet. App. 295, 302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When not, it is incumbent on the adjudicator to return the report for all necessary additional information or clarification. 38 C.F.R. § 4.2. Thus, another VA compensation examination is needed for still additional comment concerning the nature and etiology of the Veteran's claimed back disability. Also, to ensure the record is complete, all additional VA clinical records dated since September 1, 2011, must be obtained and associated with the claims file for consideration. See 38 C.F.R. § 3.159(c)(2) (2012); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, this claim is REMANDED for the following additional development: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file all VA clinical records dated from September 1, 2011, to the present. Since these records are in the custody of a Federal department or agency, namely VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). Thus, make as many attempts to obtain these records (assuming they exist) as are necessary according to this VA regulation. Also appropriately notify the Veteran if unable to obtain these records after the required attempts. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule another VA compensation examination - preferably an orthopedic evaluation. The examiner is asked to first diagnose all current back disabilities and, assuming there is at least one to account for the Veteran's complaints of back spasms and associated pain, provide an opinion regarding the likelihood (very likely, as likely as not, or unlikely) this disability incepted during his service from October 2006 to March 2010, especially starting in 2007 while he was stationed in Iraq, or is otherwise related or attributable to his service, including, if involving arthritis, manifested to the required degree of at least 10-percent disabling within the initial year following the conclusion of his service, so meaning by March 2011. In making this determination of causation, the examiner is asked to comment specifically on the significance, if any, of the lumbarized 12th thoracic segment and on the thoracolumbar spine range-of-motion findings as reported during the prior June 2010 VA compensation examination and April 2011 addendum. The examiner therefore is asked to obtain a comprehensive medical history from the Veteran in addition to reviewing pertinent records in the claims file. Note: The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Explanatory rationale must be provided for all opinions and conclusions. The examination report must indicate whether pertinent records in the claims file were reviewed in conjunction with the examination. In the event that an opinion cannot be rendered without resorting to mere speculation, the examiner must discuss why it would be speculative to respond. So merely saying he/she cannot respond will not suffice. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 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). _________________________________________________ KEITH W. ALLEN 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).