Citation Nr: 1328446 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-18 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a back disability. WITNESSES AT HEARING ON APPEAL Appellant, O.W. (spouse), and W.T. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from June 1944 to June 1946, and from October 1947 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. In January 2013, the Veteran and witnesses testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in February 2013 and was remanded for further development. It has now returned to the Board for further appellate consideration. In February 2013, the Board remanded the issues of entitlement to service connection for cold injuries of the right and left feet. In a July 2013 rating decision, the Appeals Management Center (AMC) granted service connection for cold injury of the right foot and cold injury to the left foot; thus, those issues are no longer for appellate consideration. 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 appellant if further action is required. REMAND The Veteran has a diagnosis of degenerative disc disease (DDD). He contends that he injured his back in Korea and that his current DDD is due to service. The Veteran testified that he injured his back in Korea in 1964. (See Board hearing transcript page 4.) The Board notes that the Korean War was from June 27, 1950 to January 31, 1955; thus, the Veteran is not presumed to have been in combat in 1964. The Board acknowledges the Veteran's testimony that he was in combat and that the medic would not have had time to deal with a back injury. (See Board hearing transcript page 5.) In this regard, the Board has considered whether the alleged injury could have occurred in 1954, during the Korean War, rather than 1964. However, the March 1968 STR, noted below, reflects that the injury occurred four years earlier, or in 1964; thus, not during a period of combat. The Veteran's 1968 report of medical examination for retirement purposes reflects that a March 8, 1968 orthopedic consultation was obtained. The March 1968 consultation is of record. It reflects that the Veteran was seen for a retirement evaluation. It notes that the Veteran "gives a history of intermittent back pain secondary to injury approximately four years prior to this evaluation. Symptoms will occur when the patient at times will make a bending motion. The symptoms will last for approximately one week and respond to conservative care." The impression was "strain, intermittent, acute, lumbosacral, mild." The recommendation was "no profile or duty limitations indicated." In February 2013, the Board remanded the issue for VA to obtain another examination and opinion as to the etiology of the Veteran's current back disability. A March 2013 VA opinion is now of record. The examiner stated that there was no evidence of a chronic disability of the back during the Veteran's 20 plus years of service; and thus, it was less likely than not that his current condition was related to service. The Board finds that the rationale of the March 2013 examiner is inadequate because it does not discuss whether the Veteran's intermittent lumbar strain in service is as likely as not the cause of his current DDD. In other words, is it as likely as not that the Veteran's intermittent acute lumbar strain in service started the process, or contributed to the development, of his DDD. In providing an opinion, the clinician should consider the Veteran's complaints in service, his post service occupation, the clinical records in evidence, and the Veteran's age with regard to the severity of his DDD. In addition, upon further review of the record, the Board finds that VA should attempt to obtain additional clinical records. The Veteran submitted authorization for VA to obtain records from Dr. E.R. (Carolina Spine Center). The received records reflect that the Veteran was referred to Dr. E.R. by Dr. J. Hook. The Veteran's wife also testified that the Veteran was treated by Dr. Hook and Dr. T. Edwards at Midlands Internal Medicine and/or Agape Primary Senior Care. Records from Dr. J. Hook. and Dr. T. Edward are not associated with the claims file. The earliest VA clinical record is from October 2009 and notes a computerized problem list which includes "chronic back pain." Thus, it appears that the Veteran may have been seen for back pain prior to October 2009. In an August 2010 statement, the Veteran stated that he has received all of his treatment at the Columbia VAMC. His wife testified that his back problems became a "big" problem in the last 15 years. (See Board hearing transcript page 11.) VA should attempt to associate any pertinent records with the claims file. The Veteran also stated, in a VA Form 2-4142 for another clinician, that Dr. B. Gunter of Columbia Neurosurgical Group examined him in April or May 2006. Records from Dr. B. Gunter are not of record. 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. Request the appellant to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for all medical treatment facilities in which he was treated for his back, to include treatment or examination by Dr. Hook and Dr. Edward at Midlands and/or Agape Primary Senior Care, and Dr. B. Gunter of Neurosurgical Group in April and May 2006. After obtaining a completed VA Form 21-4142, the AOJ should attempt to obtain all pertinent medical records, to include VA records, not already associated with the claims file, to include VA records from 1995 to October 2009. 2. Thereafter, request the 2013 VA examiner, or another examiner if she is unavailable, to provide a supplemental opinion as to whether it is as likely as not (50 percent or greater) that the Veteran's DDD is causally related to, or aggravated by active service. Any opinion expressed should be accompanied by a complete rationale, and should include consideration of the entire claims file, to include a.) the March 1968 consultation record which notes a reported history of four years of intermittent back pain, and an impression of acute intermittent mild lumbosacral strain, b.) the Veteran's age with relation to the severity of his DDD, c) the Veteran's post-service employment as a builder, and d) the testimony that the Veteran has had intermittent back complaints throughout the years since service, with it becoming a "big problem" in approximately 1998. The examiner should discuss whether it is as likely as not that the Veteran's intermittent acute lumbar strain in service started the process, or contributed to the development, of his DDD. If an adequate opinion cannot be rendered without another examination, the Veteran should be scheduled for one. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant 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). _________________________________________________ MICHAEL MARTIN 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).