Citation Nr: 1327134 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-36 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active military service from March 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating action by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing conducted in May 2013, before the undersigned Veterans Law Judge. The transcript from that hearing has been associated with the claims file and reviewed. The Board notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 low back disability that he claims stems from an injury sustained during service. See VA Form 21-4138, Statement In Support of Claim, received in July 2007. In the alternative he claims that to the extent he had a back injury prior to service, his in-service back injury aggravated his preexisting condition. See VA Form 21-4138, Statement In Support of Claim, received in August 2008. At his May 2012 Board hearing, the Veteran testified that he was stationed in Germany and fell off of a truck from a height of about 6 to feet landing on his low back and injuring his left shoulder. He testified that he did not mention any back pain at that time because the primary concern was for his shoulder. The Board has determined that additional development is required for the reasons discussed below. Service treatment records confirm that in August 1968, just prior to service discharge, the Veteran was treated for left shoulder strain secondary to dislocation. He made no specific back complaints at this time and the record does not otherwise corroborate his account of how the shoulder injury was sustained. The Veteran's claimed back injury is not documented. However, absent any evidence to the contrary, the Board will accept his description of the event and that he also injured his back during this incident. However service records also include a December 1965 pre-induction physical which shows the Veteran reported a history back injury several months prior to service, which was not considered disqualifying by military medical personnel. The clinical examination itself noted normal spine and other musculoskeletal examination. The Veteran was subsequently evaluated for an episode of low back pain in September and October of 1966. The remaining service records show there were no other reports of lower back pain including prior to separation in August 1968. The Board also finds it significant that a February 1976 examination for enlistment in the Army Reserve found the Veteran's spine was normal and there was no report of recurrent back pain. It is also clear upon review of the record that the Veteran suffered a significant intervening injuries to his back following his separation from service. Private treatment records show the Veteran sustained an initial injury to his low back in 1978 while employed with the Los Angeles Sheriff's Department. See EMG-NCV report from Myoneurodiagnostics dated July 14, 1997 and Newport Beach Headache and Pain Institute & Coast Pain Management, dated January 2003. He also gave a history of several slips and falls, including falling from a building rooftop. See Clinical History Patient Questionnaire from F. Missouri, M.D. dated February 26, 2001. The Veteran later aggravated his low back as a result of an automobile accident in February 2000. See report from The Greater Long Beach Orthopedic Surgical and Medical Group dated July 8, 2009. His most recent post-service injury occurred in April 2002, when he fell 8 feet off of a piece of equipment. See operative report from Saddleback Memorial Medical Center, dated August 5, 2004. Also of record is an undated medical opinion from a private physician (R.M. Paicius, M.D.) noting treatment of the Veteran since 1996 for chronic back pain. Dr. Paicius stated that it was likely that the Veteran's current back disorder was related to the 1968 fall/injury. No rationale was provided with this opinion. There was also no comment/discussion on the significance of the intervening injuries to the Veteran's spine in 1978, 2000, and 2002. Both factors limit the overall probative value of the opinion. That notwithstanding, the Veteran appears to argue that regardless of any intervening injury since service, he suffered an injury to his back during service which has continued to the present day. In other words, he purports to have continued to have low back symptoms after the initial injury in-service and prior to the initial intervening injury. The Veteran's preservice history and subsequent problems during service raise significant medical questions regarding whether a pre-existing back disorder, became appreciably worse during service beyond its natural progression. As such, the Board finds that the claim must be remanded for an appropriate medical examination. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board stresses that, because the Veteran is competent to report the onset of a back pain in service (as this requires only personal knowledge and not medical expertise and as it comes to him through his senses), the examiner must acknowledge and discuss the Veteran's contention that he injured his back during service and that he has experienced continued problems since that time. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on Veteran's report of in-service injury and instead relied on absence of evidence in service medical records to provide negative opinion). That said, however, the Veteran's contentions regarding his back pain also must be considered in light of the medical and other evidence of record to determine whether his lay testimony is also credible (a factual determination) to resultantly have probative value. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, while on remand, ongoing medical records should be obtained. In this regard, the Board notes that it appears that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in May 2011. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a notice letter regarding his service-connection claim for residuals of a back injury that complies with the notification requirements of the Veterans Claims Assistance Act of 2000 (VCAA). [The criteria necessary for the grant of service connection on the basis of aggravation of a preexisting condition should be provided.] 2. After obtaining the appropriate release of information forms from the Veteran, procure any medical records, not already in the claims file, pertaining to low back treatment received since May 2011. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 3. Then, schedule the Veteran for a VA examination to determine the onset and etiology of his current low back disability. The claims folder must be made available to the examiner for review of the case, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. All indicated tests and studies, including X-rays, should be performed, and the examiner should review the results of any testing prior to completing the report. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should clearly identify any low back disability(ies) found. For each back diagnosis made, the examiner should opine as to: a) Is there clear and unmistakable evidence (undebatable) that a back disability preexisted the Veteran's period of active duty beginning in March 1966? The examiner should identify the pre-existing back disability and the evidence supporting pre-existence. b) If a back disability clearly and unmistakably preexisted service, is there clear and unmistakable (undebatable) evidence that the disability was not aggravated by service beyond its natural progression? Consideration must be given to the Veteran's claimed injury in August 1968. c) If a back disability is not found to have clearly and unmistakably preexisted service, the examiner should provide an opinion addressing whether, assuming the Veteran was injured during service as he reports, it is at least as likely as not (a degree of probability of 50 percent or higher) that such disorder is medically consistent with Veteran's description of the claimed in-service injury in August 1968 or otherwise had its onset during the Veteran's period of active duty. The examiner must consider the Veteran's lay testimony in addition to the documentary evidence of record. In particular, his/her opinion should reflect consideration of the Veteran's descriptions of the in-service back injury and symptoms, the multiple post-service injuries, and clinical documentation of post-service treatment. The examiner is asked to discuss medically known or theoretical causes of the Veteran's diagnosed back disorders in determining the likelihood that any current back disorder was caused by his claimed in-service injury as opposed to some other cause. If all or part of the current back disability is attributable to intervening back injuries, the examiner should explain why none of the current back disability would be attributable to the in-service back injury. (The examiner should remain mindful of the fact that the Veteran is competent to say he sustained an injury in an accident during service, even if it is not actually documented in his service treatment records.) Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Complete rationale for all opinions should be provided in the examination report. The examiner must consider the Veteran's lay testimony in addition to the documentary evidence of record, particularly the service treatment records as well as the current medical evidence. The medical reasons for the opinions provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent supplemental statement of the case (June 2009). The Veteran 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 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). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).