Citation Nr: 1328152 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-40 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a left lower extremity disability, to include as secondary to a lumbar spine disability. 3. Entitlement to service connection for a stomach disability, to include as secondary to a lumbar spine disability. REPRESENTATION Veteran represented by: Kenneth L. LaVan, Esq. WITNESSES AT HEARINGS ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to June 1985 with subsequent reserve service and periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) until October 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, a hearing was held before a Decision Review Officer (DRO) at the RO. A Board hearing was held before the undersigned in February 2013. Transcripts of these hearings are of record. At the Board hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration of such evidence. The Veteran was also granted a 60-day abeyance period for the submission of additional evidence to support his claims, during which time he submitted additional evidence with a waiver of initial RO consideration. The matter of entitlement to a total disability rating due to individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 VA RO. VA will notify the Veteran if further action on his part is required. REMAND Before the Board can adjudicate the Veteran's claims on the merits, additional development is required. Subsequent to the Veteran's discharge from active duty with the Air Force in June 1985, the Veteran joined the Air Force reserves where he had a combination of ACDUTRA and INACDUTRA for periods totaling from one to four months every year until he was discharged from the reserves in October 2006. The record reflects the Veteran initially injured his lumbar spine in October 1985 and that since that injury he has also experienced pain and weakness in his left lower extremity. See, e.g., Jan. 2006 Air Force Medical Summary. The record does not reflect that the Veteran was engaged in a period of active duty, ACDUTRA, or INACDUTRA at the time of this injury. In fact, the Veteran has testified on two occasions that he was not performing in an active duty capacity when the initial injury occurred but was working in a civilian capacity for the Department of Defense. Board Hearing Tr. at 5; DRO Hearing Tr. at 1-2. Therefore, it is not in dispute that the Veteran's initial injury in October 1985 pre-existed his periods of ACDUTRA and INACDUTRA. What has not been clearly established is whether his periods of ACDUTRA and INACDUTRA permanently aggravated his lumbar spine and/or his left lower extremity disability beyond the natural progress of the disabilities. See Smith v. Shinseki, 24 Vet. App. 40, 47-49 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 173-74 (2010). Opinions from Drs. P.J.M., J.A.T., and A.M.S. indicate that the Veteran's lumbar spine and left lower extremity disability were aggravated by his service; however, they do not clearly opine whether it was the Veteran's periods of ACDUTRA or INACDUTRA that aggravated these conditions or his overall reserve service. As a result, they are insufficient for the Board to rely on in making a decision on the Veteran's claims. Therefore, the Board must remand the claims to provide the Veteran with an examination to obtain etiology opinions. The Veteran also alleges that he has a stomach disability that is secondary to medications he takes for his back disability. If the examiner determines that it is at least as likely as not that the Veteran's back disability was permanently aggravated by his service, then the Veteran should also be scheduled for an examination and opinion to determine whether a stomach disability has been caused or aggravated by the lumbar spine disability, to include medications taken for the back condition. Additionally, the record shows the Veteran receives ongoing treatment with Drs. P.J.M. and J.A.T. and that he has received treatment at the VA Medical Center in Miami, Florida. Any updated records from these treatment providers should be requested and obtained. In February 2013, the Veteran's attorney submitted a March 2012 Social Security Administration (SSA) decision that awarded the Veteran SSA benefits based in part on his lumbar spine disability and radiculopathy. Although the SSA informed VA in November 2009 that it did not have records for the Veteran, as the SSA has since granted the Veteran's claim, another request should be made to the SSA for the records pertaining to the March 2012 decision. Accordingly, the case is REMANDED for the following actions: (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. With any needed assistance from the Veteran, obtain any updated treatment records relating to the Veteran's treatment with Dr. J.A.T. since February 2012 and Dr. P.J.M. since October 2012. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in the SSA decision issued in March 2012. 3. Obtain the Veteran's VA treatment records from the Miami, Florida VA Medical Center from March 2012 to the present. 4. If any of the records requested in items 1-3 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 5. After completing the development requested in items 1-4, schedule the Veteran for an examination to determine whether his lumbar spine and left lower extremity disabilities were aggravated by his ACDUTRA and INACDUTRA service. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. For purposes of this request, the examiner should accept as true the Veteran's statements to the effect that his ACDUTRA and INACDUTRA service required him to work 12-16 hour days helping to carry and load missiles that weighed up to 3000 pounds. The examiner should specifically address the following questions: A) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine disability was permanently aggravated (i.e., increased in severity) beyond the normal course and scope of the disability by ACDUTRA and INACDUTRA service performed for periods totaling from one to four months during each year from June 1985 to October 2006? For purposes of this question, please consider that, on several occasions, the Veteran was issued profiles for his back that precluded heavy lifting and repeated bending and that he was medically disqualified from Air Force Reserve service in October 2006 based on lower back pain associated with left lumbar radiculopathy. B) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left lower extremity disability was permanently aggravated (i.e., increased in severity) beyond the normal course and scope of the disability by ACDUTRA and INACDUTRA service performed for periods totaling from one to four months during each year from June 1985 to October 2006? For purposes of this question, please consider that the Veteran was medically disqualified from Air Force Reserve service in October 2006 based on lower back pain associated with left lumbar radiculopathy. C) If the answer to A) is that it is at least as likely as not that the lumbar spine disability was permanently aggravated by the Veteran's ACDUTRA and INACDUTRA service, then please provide an opinion on the following two questions: 1) Is it at least as likely as not (a 50 percent probability or greater) that the left lower extremity disability is causally related to the Veteran's lumbar spine disability? 2) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left lower extremity disability is aggravated beyond the normal course of the condition by the lumbar spine disability? A report of the opinion should be prepared and associated with the Veteran's VA claims file. A comprehensive rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. If, and only if, the examiner determines that it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine disability was permanently aggravated by his ACDUTRA and INACDUTRA service, then schedule the Veteran for an appropriate examination to determine the diagnosis and etiology of any stomach disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. The examiner must complete any necessary diagnostic testing and consultations to determine the diagnosis of any stomach disability. The examiner should specifically address the following questions: A) Is it at least as likely as not (a 50 percent probability or greater) that any stomach disability is causally related to the Veteran's lumbar spine disability, to include medication taken for the condition? B) Is it at least as likely as not (a 50 percent probability or greater) that any stomach disability is aggravated beyond the normal course of the condition by the Veteran's lumbar spine disability, to include medication taken for the condition? A report of the opinion should be prepared and associated with the Veteran's VA claims file. A comprehensive rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his attorney with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2013). _________________________________________________ Sonnet Gorham Acting 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 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).