Citation Nr: 1325570 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 11-02 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disorder, to include sciatic nerve damage, including as secondary to a service-connected gunshot wound to the left flank, muscle group XX. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from October 1975 to October 1978 and from August 1979 to November 1981. This appeal to the Board of Veterans' Appeals (Board) is from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 back disorder. At the outset, the Board notes that the Veteran's service treatment records are not complete. On remand, his complete service treatment records should be obtained. A review of the Virtual VA paperless claims file reveals documents pertinent to this appeal. Specifically, the RO issued an April 2012 rating decision in which it adjudicated the Veteran's claim for a total disability rating based on individual unemployability (TDIU). The body of this decision does not appear on Virtual VA, but the cover sheet indicates the Veteran was administered a VA compensation examination in April 2012 and that Social Security Administration (SSA) disability records were reviewed as part of this decision. Neither the examination report nor the SSA records appear in Virtual VA or the claims file, so they must be obtained on remand. The RO afforded the Veteran a VA compensation examination in January 2009. The examiner found no current evidence of sciatica (the Veteran's claimed disability) or radiculopathy. The examiner diagnosed him with lumbar disc disease and osteopenia. The examiner opined the gunshot wound was not the etiology of the lumbar disc disease. Instead, the examiner said lumbar disc disease is typically caused by aging, trauma, jobs requiring repetitive bending, and smoking. It is not clear whether the examiner was providing an opinion as to direct or secondary service connection. In any event, as to direct service connection, it does not appear that the examiner considered the Veteran's service treatment records dated in June 1980 (prior to his in-service gunshot wound) showing complaints of recurrent back pain associated with lifting and overexertion; or the complaints of pain of the left paravertebral muscle at T-12 with an impression of muscle strain in July 1981. In addition, as to secondary service connection, an opinion as to aggravation was not provided. The question of aggravation is an integral part of a secondary service connection claim, and the absence of an answer to this question requires a remand. See 38 C.F.R. § 3.310. Therefore, an additional VA opinion is required. Finally, as the Veteran appears to received ongoing VA treatment, any recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete service treatment records, to include all clinical records, for both periods of his service from October 1975 to October 1978 and from August 1979 to November 1981. If these records are not available, a negative reply is required. 2. Make arrangements to obtain the Veteran's complete treatment records from the Bay Pines VA Healthcare System, dated since May 2010. 3. As noted above, the Virtual VA paperless claims file reveals an April 2012 rating decision; however, the body of this decision does not appear on Virtual VA. The cover sheet indicates the Veteran was administered a VA compensation examination in April 2012 and that SSA disability records were reviewed as part of this decision. On remand, ensure that a complete copy of the April 2012 rating decision, the April 2012 VA examination report, and the Veteran's complete SSA records have been associated with the claims folder. 4. Thereafter, schedule the Veteran for a VA examination of his back. The claims file should be made available to and reviewed by the examiner. All indicated tests, including X-rays if warranted, should be completed. The examiner should identify all current thoracic spine, lumbar spine, and sciatic nerve damage found to be present. (a) The examiner should provide an opinion as to whether it is least as likely as not (i.e., 50% or greater probability) that any current back disorder, including a compression fracture of the thoracic spine and degenerative disc disease, had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the service treatment record dated in June 1980 showing complaints of recurrent back pain associated with lifting and overexertion; the gunshot wound to the left flank in January 1981; and the complaints of pain of the left paravertebral muscle at T-12 with an impression of muscle strain in July 1981; as well as the Veteran's complaints of continuing back pain since service. (b) The examiner should provide an opinion as to whether it is least as likely as not (i.e., 50% or greater probability) that any current back disorder, including a compression fracture of the thoracic spine and degenerative disc disease, is proximately due to, or the result of, the residuals of the Veteran's service-connected gunshot wound to the left flank, muscle group XX. (c) The examiner should provide an opinion as to whether it is least as likely as not (i.e., 50% or greater probability) that any current back disorder, including a compression fracture of the thoracic spine and degenerative disc disease, is permanently aggravated by the residuals of the Veteran's service-connected gunshot wound to the left flank, muscle group XX. In providing these opinions, the examiner should also consider the opinion from the VA examiner (K.A.), dated August 14, 2008; and the opinion of the VA examiner (T.S.) dated January 13, 2009. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Then, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 6. Finally, readjudicate the Veteran's claim for service connection for a back disorder. If the claim remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ P.M. DILORENZO 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).