Citation Nr: 1327177 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-42 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from October 1973 to October 1977 and from February 1988 to May 1988, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana. In March 2013, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Prior to the hearing, she submitted additional evidence in relation to her claim for service connection for a back disability and waived initial RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2012). The evidence consisted of a copy of a private medical statement from J.W.T., D.C., dated in August 2012, and a copy of a letter that the Veteran sent to her parents in October 1974. However, she had already submitted such evidence and it was duplicative. A transcript of the hearing is associated with the Veteran's claims folder. The issue of entitlement to service connection for tinnitus was originally developed for appellate review; however, service connection for tinnitus was ultimately granted by the RO in an August 2012 rating action. Therefore, this issue is no longer before the Board. 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 Veteran if further action is required. REMAND In the March 2013 videoconference hearing, the Veteran reported that she currently had a back disability that was related to her military service. Specifically, she stated that in 1974, during her first period of active service, she got into an argument with her boyfriend and he grabbed her and picked her up. While he was shaking her, her back "popped." According to the Veteran, she sought treatment the next day and was diagnosed with a lower lumbar strain. She noted that she was given muscle relaxers and painkillers and was told to rest. The Veteran indicated that although the back pain eventually improved, the pain became a reoccurring problem. She stated that she worked in the tool room and had to lift heavy bags on a daily basis. The Veteran reported that due to her job, her back pain was constantly aggravated. She indicated that after her discharge from her first period of service, she continued to experience chronic back pain. According to the Veteran, she sought treatment from a private chiropractor. However, because he "molested" her, she stopped seeking treatment until 1985 when she started to receive regular treatment from John W. Terhune, D.C. Thus, she maintained that she currently had a back disability that was related to her period of service, specifically to her in-service back injury. The Veteran's service treatment records confirm that in May 1974, the Veteran sought treatment for back pain. She stated that her back "popped" after her boyfriend picked her up and squeezed her. The impression was lumbar strain. In June 1974, the Veteran sought treatment because the low back pain had persisted. At that time, x-rays were taken of her lumbosacral spine and they were reported to be within normal limits. The impression was of persisting pain secondary to lumbar strain. The Veteran's service treatment records from her second period of active service show that in March 1988, she was treated for complaints of back pain. She stated that she had performed sit-ups on a hard floor and "skinned up" her back. It was noted that the Veteran had a history of a back injury 6 months ago. The impression was paraspinal muscle strain. She subsequently underwent physical therapy. In March 2009, the Veteran underwent a VA examination. At that time, x-rays were taken of the Veteran's lumbosacral spine. The x-rays were reported to show focal marked narrowing of the L4-L5 disc space with small osteophytes anteriorly and posteriorly. Following the physical examination and a review of the x-ray reports, the examiner diagnosed the Veteran with lumbar disc disease. However, because the Veteran had only discussed her March 1988 in-service back injury and had not discussed her May 1974 in-service back injury, the examiner only addressed the question of whether the Veteran's currently diagnosed back disability was related to her March 1988 in-service back injury. In addition, the examiner stated that he could not answer the aforementioned question without resorting to speculation. A finding of service connection may not be based on a resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (2012). In light of the foregoing, because the VA examiner did not address the pertinent questions in this case, the Board is of the opinion that a new VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any current back disability. Further, in her VA Form 9 dated in October 2010, the Veteran stated that between 1980 and 1985 she was treated as a dependent while her husband was stationed at Ft. Campbell. She requested that the RO obtain her military dependent medical records from the Fort Campbell Army Hospital. At her hearing in March 2013, she stated that she was currently being treated for her back by Dr. Palmer and Dr. Moody. These records should be obtained on remand. 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) (2012). Expedited handling is requested.) 1. As noted above, the Veteran stated that between 1980 and 1985 she was treated as a dependent while her husband was stationed at Ft. Campbell. Make arrangements to obtain the Veteran's military dependent medical records from the Fort Campbell Army Hospital, dated from 1980 to 1985. 2. Make arrangements to obtain the Veteran's updated treatment records for her back from Dr. David Moody and Dr. Russell Palmer. 3. Thereafter, make arrangements for the Veteran to be afforded a VA orthopedic examination of her spine. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner is specifically requested to review the Veteran's service treatment records which show that in May 1974, she sought treatment for back pain. She stated that her back "popped" after her boyfriend picked her up and squeezed her. The impression was lumbar strain. In June 1974, she sought treatment because the low back pain had persisted. At that time, x-rays were taken of her lumbosacral spine and they were reported to be within normal limits. The impression was of persisting pain secondary to lumbar strain. In September 1977, the Veteran underwent a RAD examination. The Veteran's spine and other musculoskeletal system were clinically evaluated as "normal." In June 1985, July 1986, and May 1987, the Veteran underwent physical examinations that were pertinent to her National Guard service. In all of the attached reports of medical history, the Veteran denied recurrent back pain. In addition, in all of the examination reports, the Veteran's spine and other musculoskeletal system were clinically evaluated as "normal." In October 1987, she sought treatment for back pain of three-day duration. The Veteran stated that she had lifted her 60-pound child up into a bunk bad. The assessment was muscle spasm. She underwent physical therapy and was diagnosed with resolving low back pain. The Veteran's service treatment records from her second period of active service show that in March 1988, she was treated for complaints of back pain. She stated that she had performed sit-ups on a hard floor and "skinned up" her back. It was noted that the Veteran had a history of a back injury 6 months ago. The impression was paraspinal muscle strain. She subsequently underwent physical therapy. In May 1989, the Veteran underwent a physical examination that was pertinent to her National Guard service. At that time, she denied recurrent back pain. The Veteran's spine and other musculoskeletal system were clinically evaluated as "normal." The examiner must also specifically review private medical records which show that in October 2003, the Veteran was treated for complaints of back pain. She reported an onset of the pain in September 2003 when her nephew picked her up to hug her and she "immediately felt something in her back." She subsequently received treatment at a local emergency room. The records reflect that the Veteran underwent physical therapy for her back pain. In addition, the examiner must review the private medical statement from T.J.P., dated in October 2003. In the statement, Dr. P. indicated that he had recently treated the Veteran for a three week history of severe low back pain. The Veteran had one episode of low back pain in the 1980's when she was participating in Officer Training, but she "actually rebounded quite nicely" and had some Physical Examination Award in the service. Recently, she had developed severe low back pain. The Veteran brought a magnetic resonance imaging (MRI) scan for Dr. P. to review. Dr. P. stated that the MRI scan showed some desiccation and degenerative of the L4-5 disc. There may be some mild desiccation in the L3-4 disc as well. The remainder of the discs looked unremarkable. There was no abnormal bony changes and there was no significant stenosis or herniated discs. Dr. P. diagnosed the Veteran with acute low back pain. Moreover, the examiner must review the August 2012 private medical statement from Dr. J.W.T. In the statement, Dr. T. indicated that he first treated the Veteran in 1985, secondary to a low back injury suffered approximately 11 years earlier. The Veteran's symptoms were consistent with L4-L5 and lumbosacral joint dysfunction with probable disc involvement at those levels. According to Dr. T., he treated the Veteran intermittently over the following 20 years in an effort to palliate an already chronic condition. All necessary special studies or tests are to be accomplished, to include x-rays if deemed necessary by the examiner. After a review of the examination findings and the entire evidence of record, the examiner should render an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability, to include the Veteran's diagnosed lumbar disc disease, is related to the Veteran's period of military service, to include her May 1974 in-service back injury and diagnosed lumbar strain, and/or her March 1988 in-service back injury and diagnosed paraspinal muscle strain? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. If no link to military service is found, such finding and conclusion should be affirmatively stated and a complete rationale for any opinion expressed should be included in the examination report. 4. After completion of the above and any other development deemed necessary, review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, provide the Veteran and her representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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 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).