Citation Nr: 1330594 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 13-05 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran is a Gulf War Veteran who had active service from July 1987 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the St. Petersburg, Florida, regional office (RO) of the Department of Veterans Affairs (VA). 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 contends that she was treated for low back symptoms in service and that she continues to suffer from such low back symptoms and now has a low back disability as a result. The Veteran's Service Treatment Records (STRs) include a January 1988 X-ray report of the lumbosacral spine that revealed "No significant abnormalities noted." Later in service, the Veteran was given a "Physical Profile" in March 1991 with a medical condition described as "chronic low back pain with mechanical neck pain." However, the April 1991 discharge examination report makes no objective indication of any lower back problem, although the Veteran remarks that she has recurrent back pain in her April 1991 Medical History Report at discharge. In view of the evidence above, the Board concludes that the Veteran's VA examination in January of 2010 was inadequate because the VA examiner failed to adequately explain his opinion concerning the etiology of the Veteran's claimed low back disability. As he states, he could not render an opinion because such knowledge is not available in the medical literature, and any opinion would be speculation. This rationale is insufficient. If the examiner must resort to speculation, the examiner must provide a more complete explanation, to include what literature was consulted, and indicate whether there was any further need for additional information and/or testing. In any case, the examination was insufficient because the examiner did not address any of the STR evidence in the rationale for the negative opinion. Specifically, the examiner notes the evidence of low back complaints and symptoms as reflected in the STRs when the Veteran's history and records were reviewed, but the affect of this information, if any, is not discussed in the opinion rendered. Instead, the VA examiner states that neither lumbar degenerative joint disease, degenerative disc disease, nor joint disease in the Sacroiliac joints were found in service or 18 months after service. This statement does not adequately address this means why there is no connection between the in-service documentation of low back symptoms and the current low back symptomatology. Thusly, the Board finds the examination and opinion insufficient. Accordingly, the case is REMANDED for the following action: 1. All reasonable efforts shall be made to attempt to obtain and associate with the claims any relevant VA medical records, or private medical records reasonably identified by the Veteran. 2. Following the conclusion of the above development, the Veteran shall be afforded an opportunity to attend an appropriate VA examination to evaluate the nature and etiology of any current low back disability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that the claims file and any electronic records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner shall identify a diagnosis of all current back disabilities and render an opinion as to the following: Whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed low back disability was incurred in, as a result of, or otherwise etiologically related to Veteran's active duty service. A complete rational for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide their reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. 3. The AOJ must notify the Veteran that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for the VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the AOJ must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the AOJ must implement correct procedures at once. 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must consider all the evidence submitted since the issuance of the December 2012 statements of the case and the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and her representation must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant 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). _________________________________________________ JONATHAN B. KRAMER 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).