Citation Nr: 1326546 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-03 306A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbosacral disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Houston, Texas. The Board notes that the Veteran filed his claim as for service connection for a "lumbosacral condition." The RO recharacterized the issue on appeal in its June 2005 rating decision as for "spinal stenosis L4-L5." In light of the medical evidence of record showing various lumbosacral spine conditions including but not limited to spinal stenosis, the Board has recharacterized the issue on appeal more broadly as for a lumbosacral disability. 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 served on active duty from October 1963 to October 1967. He claims that he has a lumbosacral disability due to a 20-foot fall in service around 1963 or 1964 during basic training at Lackland AFB. The Veteran's October 1963 enlistment examination report reflects no notations regarding any back problems, and examination of his spine was normal. A November 1963 treatment record prepared at the Lackland AFB dispensary reflects that the Veteran complained of low back pain with sciatica, stomach pain, and nausea. No precipitating injury was noted, and the Veteran reported a lifting injury one year prior. Nothing remarkable was notated on examination, and no evidence of back sprain was noted. An x-ray order reflects a history of an "old injury one year ago, pain now especially after physical training." November 1963 x-ray revealed no abnormal findings. On his September 1967 separation report of medical history, the Veteran checked the boxes indicating that he experienced arthritis and recurrent back pain, and the physician noted on the report that arthritis referred to generalized joint pain present for two years that had been evaluated in June 1967 and was treated with physical therapy. The Board notes that the service treatment records reflect physical therapy was provided in 1966, not 1967, following complaints of neck pain. The September 1967 separation examination report reflects that examination of the Veteran's spine was normal. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). As shown above, no preexisting condition was noted on the Veteran's entrance examination report or report of medical history. Therefore, the Board finds that the presumption of soundness applies in this case. Post-service, a January 1998 private radiology report reflects that an x-ray revealed significant diffuse hypertrophic degenerative changes in the lumbar spine, especially in the lower lumbar segments. VA treatment records dated since March 1999 reflect complaints of back pain and a history of spinal stenosis and a disc bulge at L4-L5. The Veteran has reported to VA clinicians that he injured his back in service and has experienced back pain since service. See, e.g., April 1999, April 2001. The Board also acknowledges a June 2004 brief letter from Dr. C.F.V. noting that the Veteran had severe degenerative joint disease of the lumbar spine as a result of an in-service injury, with associated radiation to both legs. The Veteran was provided with a VA examination in December 2006. The VA examiner recorded a diagnosis of lumbar spine multilevel osteoarthritis and degenerative disc disease, and lumbar spine spinal stenosis L4-L5. The examiner opined that the Veteran's spinal stenosis was not caused by or related to his active service, reasoning, among other things, that his condition preexisted service. As shown above, the presumption of soundness applies in this case. Therefore, the Board finds that a remand is necessary to obtain a VA medical opinion from the examiner who provided with the December 2006 VA examination (or, if not available, to provide a new VA examination) to clarify as follows: a) whether there is clear and unmistakable evidence that the Veteran's lumbosacral condition preexisted service, b) if so, whether there was an increase in severity during service beyond the natural progress of the condition, and c) if so, whether there is clear and unmistakable evidence that the Veteran's preexisting condition was not aggravated by service. In addition, the Veteran reported on his November 2005 notice of disagreement that post-service, he experienced loss of control of his lower extremities as a result of his lumbosacral condition that caused him to fall and that after that fall, he was diagnosed with spinal stenosis and a ruptured disc. In that regard, the Veteran reported to the December 2006 VA examiner that he had an intercurrent injury to his back ("I hurt it again") 10 to 12 years prior to the examination, but he did not elaborate. In any event, the Board also finds that on remand, the VA examiner should address whether it is at least as likely as not that the Veteran has any lower extremity condition involving loss of control that is related to service. The Board also notes that there are no VA treatment records in the claims file dated since July 2008. Therefore, a remand is also necessary so that copies of any outstanding VA treatment records dated since July 2008 may be associated with the paper or electronic claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated since July 2008 and associate them with the claims file. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 2. After the above development has been completed, obtain a VA medical opinion from the same examiner who performed the December 2006 VA examination to clarify as follows: a) Whether there is clear and unmistakable evidence that the Veteran's lumbosacral condition preexisted service; b) If so, whether there is clear and unmistakable evidence that the Veteran's preexisting condition was not aggravated by service. Note that aggravation means that there was an increase in severity during service beyond the natural progress of the condition; c) If any lumbosacral condition is not found to clearly and unmistakably have preexisted service, then please opine whether it is at least as likely as not that it was incurred in or otherwise is related to service. d) Whether it is at least as likely as not that the Veteran has any lower extremity condition involving loss of control or weakness that was incurred in service or that is secondary to his lumbosacral condition; if found to preexist service, please opine as to whether there is clear and unmistakable evidence that it preexisted service and was not aggravated by service. The examiner must provide the underlying reasons for any opinions provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the same VA examiner who performed the December 2006 VA examination is no longer available, please provide the Veteran with a new VA examination and obtain the above opinions. 3. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK 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).