Citation Nr: 1325644 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-22 871A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1953 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1971 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the above claim. In December 2007, the Board found that the Notice of Disagreement (NOD) submitted in March 2005 was timely because the Veteran was denied proper notice of the May 1971 rating decision when it was sent to an incorrect address and remanded the claim for proper notice in accordance with the Veterans Claims Assistance Act (VCAA) and issuance of a Statement of the Case (SOC). Subsequently, the Board remanded the matter for additional evidentiary development in December 2011, October 2012, and April 2013. Please 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). 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 Unfortunately, an additional remand is required in this case. While the Board regrets the additional delay, further development is required prior to appellate review as the VA medical opinions of record remain inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board notes that the Veteran's representative in a July 2013 brief has requested that this case be remanded for a supplemental opinion as the May 2013 VA examination is not responsive to the Board's April 2013 directives. Specifically, as discussed in the July 2013 brief submitted by the Veteran's representative, the VA examination report provided in May 2013 does not include any discussion of the relevant lay evidence of record in support of the Veteran's claim for service connection for a lumbar spine disorder including the Veteran's competent statements regarding an inservice injury to the spine as well as the Veteran's lay statements regarding his continuous symptomatology since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the VA examiner must consider whether the Veteran's lay statements present sufficient evidence of the etiology of the claimed disability); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (a VA examiner may not ignore the Veteran's account of a back injury in service); 38 C.F.R. § 3.303(a) (requiring consideration of the places, types, and circumstances of the Veteran's service). The representative argued that the examiner's failure to consider the Veteran's statements regarding an inservice injury and other lay statements regarding post-service symptomatology renders the VA examination inadequate and that a remand was necessary in order to comply with the directives of the prior remand. The Board agrees. Therefore, a supplemental VA medical opinion must be obtained before a decision can be reached on this appeal. On remand, the AMC should also associate any recent outstanding relevant VA treatment records with the claims folder or electronic records file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Make appropriate efforts to associate any outstanding relevant VA treatment records with the claims folder or electronic records file. 2. Request an addendum to the May 2013 VA examination report, if possible, from the same examiner. Otherwise, a different examiner should be asked to review the claims folder and provide the requested opinions. The Veteran reported a back injury from lifting a heavy motor part in service and stated that witnesses to the injury told him that an audible "click" was heard. He also reports a history of back pain since the date of the injury. Medical information from the Mayo Clinic associating a "popping" sound with a back sprain was submitted in support of the Veteran's claim and the January 2012 VA examiner also determined that the Veteran most likely sustained a lumbosacral sprain or strain in service while lifting. Lastly, a 1975 x-ray report notes "irregularity of the anterior aspect of the 3rd lumbar vertebra that may be due to trauma," as well as degenerative changes of the lumbar spine. Please explicitly consider and discuss the lay evidence concerning the Veteran's relevant medical history, including the injury described by the Veteran; the significance, if any, of the clicking sound heard; and the Veteran's reported history of continuous symptoms of back pain since the injury in service, and review the information from the Mayo Clinic, the January 2012 examination report findings, the 1975 x-ray report suggesting possible past trauma, and the other lay and medical evidence of record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current lumbar spine disorder: (a) had its clinical onset during active service; (b) is the result of a back sprain, or strain, incurred in service, or any other acute injury suggested by the Veteran's description's of the in-service lifting injury; (c) is associated with wear and tear from regular lifting of heavy objects, like vehicle engines, transmissions, and differentials, as a wheeled vehicle repairman over three years of active service; (d) is related to the findings on the 1975 x-ray report, and, if so, whether those findings are the result of posttraumatic changes resulting from the acute in-service injury described by the Veteran, the result of wear and tear from the regular lifting of heavy objects over three years of active service, or otherwise related to the Veteran's active military service; or (e) is related to any other in-service disease, event, or injury. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must identify the facts relied on for all opinions provided and give a full explanation as to why those particular facts support the conclusion. 3. 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. 4. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative 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 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. _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).