Citation Nr: 1326710 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-27 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for lumbar spine disability, to include as secondary to service-connected left leg/knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army/Army Reserves from August 1990 to February 1991, July 1991 to January 1992, October 2001 to October 2002, January 2004 to November 2004, and from October 2008 to November 2008. The Veteran's service in Southwest Asia is of record. This matter comes before the Board of Veterans' Appeals on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's claim. In February 2009, the Veteran presented sworn testimony during a RO hearing before a decision review officer. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board in March 2011 had remanded the appealed issue, together with then-appealed issues of entitlement to service connection for disabilities of the cervical spine, right shoulder, and right hand/wrist. However, by a May 2012 rating action the Appeals Management Center (AMC) granted service connection for the claimed cervical spine disability and by a June 2012 rating action the AMC granted service connection for the claimed right shoulder and right hand/wrist disabilities. These constituted complete grants of those claims on appeal, and there accordingly remain no issues in controversy as to these claims for appellate consideration. 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 Upon a VA treatment evaluation in December 2005, a review of body systems include a lumbar back examination assessed as normal, with no tenderness to palpation and straight leg raising negative. A March 2006 VA neurosurgery consultation noted the presence of lateral posterior numbness that radiated down the left leg, including in the left testicular area and the whole leg into the foot, which reportedly began in February 2005. The Veteran was also then noted to be status post left hip surgery in 1993 following a motor vehicle accident. That 1993 motor vehicle accident has been determined by VA to have been in line of duty, and the Veteran has been service connected for degenerative disk disease of the cervical spine and for postsurgical calcification of the left femur with shortening of the left leg and degenerative joint disease of the left knee on that basis. A September 1993 private hospitalization report notes that the injuries suffered included a fracture of the femur with hematoma. The Veteran was afforded a VA examination for compensation purposes in September 2011 addressing his claimed lumbar spine disability. The examiner opined that the Veteran did not at least as likely as not have a back condition due to his service-connected left leg condition because "[the] Veteran described his back condition as only intermittent, not chronic." The examiner added that the record provided no evidence of a chronic back condition. An additional, independent medical opinion, based on review of the record without examination, was obtained in June 2012. That examiner opined that it was not at least as likely as not that the Veteran's thoracolumbar spine condition was causally related to his motor vehicle accident in 1993 "which resulted in a fractured right femur" because "[c]hest x-rays [were] taken at the time of his admission in 1993 [.... but there was] [n]o mention of thoracic spine abnormalities." However, the June 2012 opinion is incorrect in its identification of the femur fracture in service as a fracture of the right femur, rather than the left. This is particularly problematic since the Veteran's leg deformity with shortening of the left leg is attributed to that injury. The extent of the injury in 1993 likely thus also escaped the June 2012 examiner's review. As the September 1993 hospitalization reported noted: The left leg is extremely swollen and deformed. There is pain in the entire thigh which appears to be pinched and indurated. There is also tenderness and swelling and pain on movement of the knee. There are multiple abrasions and contusions. Such graphic documentation of such an extensive injury should not have escaped the June 2012 examiner's review, and absent such information as to the nature of the injuries sustained in that accident, it is difficult for the Board to appreciate how the June 2012 could have arrived at a fully informed conclusion as to whether or not the scope of injuries sustained in that accident likely extended to the lower spine. The Veteran's authorized representative, in a brief submitted before the Board in June 2013, argued that the bases for the June 2012 opinion addressing lumbar disability etiology as potentially related to the 1993 motor vehicle accident appear inadequate. The Board tends to agree. Specifically, a September 1993 chest x-ray read to address a potential right lung contusion following a severe accident would not reasonably be expected to have then remarked on the status of the Veteran's lumbar spine, even if the x-ray extended downward sufficiently to view the entire lumbar spine. The Board is unclear as to the significance of the failure to mention a thoracic spine abnormality at the time of this x-ray has on the Veteran's claim for a lumbar spine disability. There thus appears to be no legitimate basis provided to support the June 2012 independent medical opinion addressing etiology of a claimed lumbar disorder. The Board accordingly concludes that the June 2012 independent medical opinion is inadequate for adjudicative purposes. Evans v. West, 12 Vet. App. 22, 30 (1998). Based on such inadequacy, a further examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also has difficulty with the September 2011 VA examiner supporting an opinion of no lumbar back disability related to service based on intermittent rather than chronic complaints of low back difficulty. The Veteran, who has been reluctant to complain of difficulties, would not necessarily complain when a condition only presented with minor pain or other limited symptoms, and to conclude on that basis that a disorder of the affected part is not chronic in nature may thus be erroneous. Significantly, MRI reports from June and July 2006 (contained in the Veteran's Virtual VA folder) clearly shows disc protrusions at the L4-5 and L5-S1 levels. This belies the conclusions, particularly of the September 2011 examiner, that the Veteran has no chronic low back disability. A more thorough examination of the Veteran for potential lumbar disability is in order, including by appropriate scans (or review of existing scans) to address soft tissue as well as bone abnormalities, and with pointed questions directed at the Veteran concerning symptoms and history of disability, to include some effort to reduce the Veteran's apparent reticence in making such complaints. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of the remanded claim. 2. With the Veteran's authorization and assistance, as appropriate, obtain any as yet unobtained VA and private records of examination or treatment related to the back, spine, or lower extremities. 3. Thereafter, afford the Veteran a VA examination by a physician with sufficient expertise to address the nature and cause(s) of any current low back dysfunction. The claims folder as well as digital records (e.g., Virtual VA records) must be made available to the examiner for review in conjunction with the examination. All necessary studies, tests, and evaluations should be performed and the results noted in the examination report. The examiner should address the following: a. The examiner should obtain a history both from the Veteran and from the clinical records. The examiner should note the Veteran's self-report of past and current symptoms of low back disability, but should also note the Veteran's apparent history of reticence or stoicism, reflecting a potential past disinclination to report pain or dysfunction or the extent or frequency of these, with the potential result that a disability reported to be only intermittent may reflect a chronic or ongoing underlying disorder. The examiner is advised that lay evidence may serve to support a diagnosis or a finding of etiology to the extent such evidence is found credible. The examiner should note prior medical evidence inclusive of records of treatment and hospitalization in September 1993 following his motor vehicle accident which is accepted as in line of duty, as well as subsequent records noting the low back and/or lower extremity neuropathy, inclusive of a June 2006 private MRI examination of the thoracic and lumbosacral spine with findings of soft tissue lumbosacral pathology. b. For any low back disorder found, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused or aggravated (permanently increased in severity), in whole or in part, by (1) the motor vehicle accident in September 1993, (2) other in-service activities or incidents, or (3) the Veteran's service-connected postsurgical calcification of the left femur (residual of fracture of the femur) with shortening of the left leg and degenerative joint disease of the left knee, and any associated alteration of gait or stance. Possible causation or aggravation by each of these conditions (to the extent they may be present) should be separately addressed. c. The examiner should explain his or her findings and conclusions in detail, providing an explanation how the examiner reached his or her conclusions, including the medical bases for the conclusions and the evidence relied upon for the conclusions. d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is at least so evenly divided that it is at least as medically sound to find in favor of the conclusion as it is to find against it. e. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report, with appropriate reliance on evidence including as contained within the record. If the examiner cannot answer any question posed without resorting to speculation, the examiner must provide a complete explanation as to why this is so. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Thereafter, readjudicate the remanded claim de novo. If any benefit sought is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto. 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). _________________________________________________ L. M. Barnard Acting 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).