Citation Nr: 1327612 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 06-37 441A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to May 1972. This matter initially came to the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the Veteran's petition to reopen a previously denied claim of service connection for residuals of a back injury. The Veteran timely appealed the denial, and in an April 2013 decision, the Board reopened the previously denied claim and remanded the case on its merits. In that remand, the Board instructed the agency of original jurisdiction (AOJ) to complete further evidentiary development and adjudication. The Veteran testified before the undersigned at a hearing at the RO in September 2012. A transcript of that hearing has been associated with the Veteran's claims file. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for service connection for residuals of a low back injury. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated that, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Regarding his service connection claim, the Veteran has contended that he has a current back disorder that began while he was on active duty and has continued to the present. In particular, the Veteran stated that he injured his back in service when he fell several feet and experienced whiplash when a helicopter cable went slack unexpectedly. The RO denied the Veteran's claim on the basis that the medical evidence of record did not show that he had a current back disorder. Relevant medical evidence consists of the Veteran's service treatment records, as well as his post-service treatment at VA facilities. The Veteran's service records reflect that he was treated in July 1971 for complaints of spasms in the thoracic area of his back after he experienced a whiplash injury when a cable went slack, causing the Veteran to undergo a six-foot drop before the cable pulled taut. The Veteran was diagnosed at the time with muscle strain and was treated in August and September 1971 for complaints of back pain and spasm. He was diagnosed in September 1971 with mild back strain and paraspinal fibromyositis. However, at his May 1972 separation medical examination he was noted to have a normal spine and normal musculoskeletal system. Post-service VA treatment records indicate that the Veteran was diagnosed with chronic back strain in June 1982, although an April 1982 x-ray of his thoracolumbar spine revealed no abnormality. He has been seen on multiple occasions since that time for complaints of low back pain that he has consistently related to the in-service whiplash incident. Radiological evaluation in July 2003 revealed "incipient" early degenerative changes of the lumbar spine and degenerative joint disease of the thoracic spine, which was noted to be a "major abnormality." He again underwent x-ray examination in January 2007, at which time his lumbar spine was found to be normal, although the x-ray of his thoracic spine was noted to be technically inadequate and only could be read to "suggest" degenerative joint disease." However, a follow-up x-ray of the thoracic spine in February 2007 found minimal degenerative joint disease in the upper thoracic spine. In addition, the Veteran underwent an MRI study in March 2010; at that time, he was diagnosed with multilevel degenerative disc disease of the spine. The Veteran underwent VA examination in June 2009. At that time, he was diagnosed with chronic low back strain with minimal objective clinical and normal x-ray findings. The examiner opined that the Veteran displayed "some longstanding symptomatic magnification" and noted that he did not see any degenerative changes on radiological evaluation. He was noted to have tenderness to the paraspinal muscles and to have limitation of motion of the thoracolumbar spine due to pain. The examiner offered a negative etiological opinion but appeared to base that finding on his conclusion that the Veteran does not have a current back disorder. Because the Board found in the April 2013 remand that there is evidence suggesting that the Veteran does have a diagnosed back disorder, the claim was remanded for the Veteran to again undergo VA examination, which was conducted in May 2013. At that time, the examiner reviewed the medical records, conducted physical examination of the Veteran, and concluded that he does not have a current back disorder. However, in his review of the Veteran's medical history, the examiner appears not to have considered the July 2003 x-ray of the Veteran's spine, which revealed degenerative joint disease that was labeled a "major abnormality," or the February 2007 x-ray of the Veteran's thoracic spine, which showed degenerative joint disease. Further, although the examiner discussed the March 2010 MRI, he dismissed the findings as "completely normal," even though the record clearly reflects that the diagnosis at the time was degenerative disc disease of the lumbar spine. Once VA undertakes to provide an examination or obtain an opinion when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In this case, it does not appear that the May 2013 VA examiner conducted a thorough evaluation of the Veteran's current claimed back disorder, in that no radiological or MRI study was conducted at that examination, and the examiner failed to fully consider all the evidence of record, including diagnoses of degenerative joint disease of the thoracic spine on radiological evaluation conducted in July 2003 and February 2007 as well as a diagnosis of degenerative disc disease of the lumbar spine at a March 2010 MRI study. Thus, the VA examinations obtained to date are inadequate. See 38 C.F.R. § 4.2 (2012) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required. In light of the above considerations, the Board concludes that additional medical examination and opinion are needed. Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claim of service connection for residuals of a back injury. 38 U.S.C.A. § 5103A (West 2012). Specifically, the AOJ must arrange for the Veteran to undergo VA examination by a qualified professional, who must review the Veteran's claims file and his assertions and offer a clear diagnosis for each thoracic or lumbar spine disability the Veteran currently experiences. If no such disorder is found, the examiner must thoroughly reconcile such a finding with the July 2003, February 2007, and March 2010 diagnostic findings noted above. For each such diagnosed disorder, the examiner must offer a well-reasoned etiological opinion as to whether the disorder is directly linked to his time on active duty, to include in particular his July 1971 back injury. The Veteran's contentions concerning continuity of symptomatology, as well as the February 2007 and March 2010 diagnoses noted above, must be discussed in the context of any negative opinion. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran must be scheduled for examination with a qualified medical professional. He must be notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2012). The entire claims file, including a copy of this remand, must be made available to and reviewed by the examiner(s). All appropriate tests and studies-including radiological study of the Veteran's thoracolumbar spine-must be accomplished, and all clinical findings must be reported in detail. The VA examination is necessary to determine the diagnosis and etiology of any current back disorder shown to be present. The VA examiner must review the Veteran's claims file and medical history, examine the Veteran, and provide a clear diagnosis of any thoracic or lumbar spine disability currently present. If the examiner concludes that the Veteran does not currently experience a thoracic or lumbar spine disorder, the examiner must thoroughly reconcile such a finding with the July 2003, February 2007, and March 2010 diagnostic findings noted above. The examiner must also offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any currently diagnosed back disorder is directly traceable to his period of military service. All necessary tests, including but not limited to x-rays of the Veteran's thoracolumbar spine, must be included and the results discussed in the examination report. The Veteran's contentions that his back problems first manifested in service following the July 1971 whiplash incident must be discussed in the context of any negative opinion. The examiner must thoroughly review the Veteran's claims file, to include a copy of this remand. A well reasoned opinion must be provided with a detailed explanation for all conclusions reached by the reviewer. Citations to the record or relevant medical principles should be included as necessary to explain the opinion(s), and a complete rationale must be given for all opinions and conclusions expressed. 2. After completing the requested actions and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran 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). _________________________________________________ Thomas H. O'Shay 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).