Citation Nr: 1329681 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 04-38 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a lumbar spine disability (back condition). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from November 1965 to November 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter has previously been before the Board on several occasions. In February 2007 the Board reopened the claim of service connection for a back condition and remanded the issue for due process considerations and a VA examination. In February 2009 the Board again remanded this issue for a VA examination. In June 2010 the Board remanded this issue for a third time for an addendum opinion to the VA examination. A previous remand confers on the veteran, as a matter of law, the right to substantial compliance with the remand orders Stegall v. West, 11 Vet. App. 268 (1998); D'Arie's v. Peake, 22 Vet. App. 97 (2008). The Board finds the February 2009 remand orders were substantially completed as an addendum opinion to the March 2009 VA examination was obtained. As such, this matter has been properly returned to the Board for appellate consideration. Unfortunately, the Board finds that an additional remand is required. As discussed in the Board's June 2010 decision, it appears that the issue of entitlement to service connection for a neck disability 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 this issue, and it is referred to the AOJ for appropriate action. 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 As noted above, the Veteran's claim for service connection for a back condition has already been remanded on several occasions. Most recently, in June 2010 the Board found the March 2009 VA examination was based upon an inaccurate factual basis and remand was required for an addendum opinion following factual clarification. In this remand the Board specifically asked the examiner to review the April 1995 VA examination report contained in the claims file, among other evidence. Addendum opinions were obtained by the same VA examiner in June 2010 and May 2013. However, in both opinions the VA examiner indicated he could not find the report of the April 1995 VA examination in the file. The examiner then opined the Veteran's current back condition was less likely than not due to his active military service. In supporting his decision the examiner pointed to a 2001 CT examination of the Veteran's spine which was normal. However, the April 1995 VA examination report the examiner was unable to review includes the results of an x-ray of the Veteran's spine that same month. This x-ray was read by a VA physician to reveal degenerative changes in the thoracolumbar spine and mild degenerative changes in the lumbar spine, as well as "possible scoliosis." Therefore the Board finds the examiner did not review probative evidence suggesting the Veteran had a back condition prior to the 2001 CT scan upon the Board's specific request. Consequently additional remand is required to obtain a medical opinion which considers this earlier spinal x-ray. Additionally, in his March 2009 VA examination the Veteran reported that in approximately 1998 he "became disabled" and began to receive Social Security Disability for his back. Unfortunately, the records from the Veteran's Social Security Administration (SSA) benefits, including his application, determination, and any medical records upon which the determination was made, are not yet of record. In addition, review of the record does not reveal any attempt has been made to search for the Veteran's SSA records. These records may be particularly relevant as in his October 2006 written statement the Veteran asserted that he received treatment for his back condition between 1967 and 1995 however his physician had since deceased and his records were no longer available. Therefore, these SSA records may be relevant to the claim on appeal, especially if they contain medical treatment records earlier than 1995. Consequently remand is required to obtain these records and associate them with the claims file. See 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board greatly regrets the additional delay in resolving this claim, which has already been pending of over ten years. Unfortunately as discussed an additional remand is required. Accordingly, the case is REMANDED for the following action: 1. First, obtain any records from the Social Security Administration (SSA), to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. 2. Second, return the Veteran's claims file to the examiner who provided the March 2009 VA spine examination, or if he is unavailable, to another examiner knowledgeable in orthopedic disabilities. If it is determined that an opinion cannot be reached without conducting an examination, an examination should be scheduled. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's current back condition either began during, or was otherwise caused by, his military service. The examiner should review the Veteran's claims file and a complete rationale should be provided for any opinion expressed. In doing so, the examiner should specifically address the following evidence: a) The Veteran's consistent lay testimony relating his current back condition to falling in a hole during boot camp. b) Service treatment records which indicate the Veteran sought treatment for low back pain on four separate occasions, including after falling in a foxhole during boot camp and additional injury during the month before he was discharged from service when he was put on light duty. c) The April 1995 VA examination report, including the x-ray of the Veteran's spine which was interpreted to reveal "degenerative changes in the thoracolumbar spine with mild degenerative changes involving the lumbar spine." d) Any relevant medical evidence in the Veteran's SSA records, to include any treatment for his back condition before 1995, if available. 3. Third, readjudicate the appeal in light of all additional evidence added to the record. If the claim remains denied provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ T. D. JONES 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).