Citation Nr: 1331121 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-40 514A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a back disability, to include residuals of L3-L5 compression fracture. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1976 to November 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). [The decision was issued by the Winston-Salem, North Carolina RO, and jurisdiction of the Veteran's claims file is with the Winston-Salem RO.] In April 2012, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. In July 2012 and again in March 2013, the issue remaining on appeal was remanded for additional development. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" to ensure that the complete record is considered. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. The Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the claim on appeal. See 38 C.F.R. § 3.159 (2013). The Veteran contends that he suffers from a back disability caused or permanently aggravated by his military service. Evidence and the Veteran's own contentions suggest that he sustained multiple compression fractures of lumbar vertebrae prior to service, but no back disability was noted on his entrance examination in November 1976 (the back was normal on clinical evaluation). A clear back disability was never diagnosed during service. However, a July 1980 service treatment record (STR) shows that the Veteran complained of toe numbness after a long drive and he was advised to perform back exercises. The report of his October 1980 service separation examination shows that his spine was normal on clinical evaluation, and he reported that his toe numbness had resolved. The Veteran's claims of service connection for toe numbness and for a back problem were adjudicated shortly following service. A January 1981 VA examination report shows that the Veteran was experiencing continuing numbness in one of his feet and the VA examiner opined that this was "compatible with a partial right L-5 dermatoma" and was "suspected to be most likely due to nerve root irritation in the right lumbar area." In February 1981, the RO granted service connection for paresthesias of the distal half of the right foot and toes, but denied service connection for a back disability. The denial of service connection for the back disability appears to have been based upon a finding that such disability pre-existed, and was not aggravated by, service. In March 2013, the Board re-opened the claim of service connection for a back disability upon finding new and material evidence had been submitted. A December 2008 opinion from the Veteran's private chiropractor states that the Veteran has lumbar disc degeneration, lumbosacral joint dysfunction, and lumbar myalgia; the chiropractor attributes each of these to the Veteran's military service on the basis of the Veteran's account of heavy lifting and loading. A July 2012 statement from the same chiropractor states that the Veteran has "degenerative discogenic arthritis" due to his past (pre-service) lumbar fractures but aggravated by factors including his military duties. The Board's March 2013 remand found that a new VA medical examination/opinion addressing this matter was necessary. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board remanded the issue for a new VA examination to address several questions concerning possible causation or aggravation of back disability during service. The resulting May 2013 VA examination report diagnoses only "lumbar degenerative joint disease" and finds no clear indication of disc disease. The VA examiner opined that the current back disability is unlikely related to military service because the Veteran didn't have back symptoms during service and was clinically normal at his separation examination. The VA examiner comments that "the etiology of his lower extremity numbness ... is unknown. For further clarification, EMG and/or MRI may further shed light on the etiology of this numbness." The Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). The Board finds that fully informed appellate review in this case is not yet possible because the May 2013 VA examiner's opinion relies on a finding that there were no symptoms of back pain during service without adequately resolving the question of whether the Veteran's lower extremity numbness complaints during service and proximately following service should be considered pertinent manifestations of a back disability (either caused or aggravated during service). The May 2013 VA examiner expressly stated that additional clarity regarding the nature of the numbness would require additional testing: "For further clarification, EMG and/or MRI may further shed light on the etiology of this numbness." Such diagnostic testing was not completed, and the Board finds that the additional clarification is necessary. There is also conflicting evidence regarding whether the Veteran has intervertebral disc disease (or other neurological issue associated with his spine disability); this matter requires clarification via a new VA examination (with completion of the suggested diagnostic testing). Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should arrange for the Veteran to be examined by an orthopedic spine surgeon to determine the nature and likely etiology of his back disability, and in particular whether or not it is related to (was caused or aggravated by) his military service. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. All indicated tests or studies should be accomplished, to include the EMG and/or MRI testing (to determine whether the Veteran's right foot numbness has been a manifestation of a back disability) suggested on May 2013 VA examination. Based on examination of the Veteran and review of the record (specifically including the STRs, the January 1981 VA examination report, and the records and medical opinions of Dr. Klingensmith from December 2008 and July 2012), the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) each chronic back disability entity found? The examiner should specifically state whether or not the Veteran has degenerative disc disease (or any other spine disability manifested by the right foot neurological complaints). (b) As to each diagnosed back disability entity found, please opine: i. Whether such disability was initially manifested prior to, during, or subsequent to service. ii As to any/each current back disability that was manifested in service is there any evidence in the record that renders it undebatable from a medical standpoint that it pre-existed service. If so, please identify such evidence, and further opine whether there is any evidence that renders it undebatable that the disability was not aggravated during service. iii As to each diagnosed back disability that was first manifested after service, please opine whether such at least as likely as not is related to the Veteran's service, to include the documented complaints and findings therein. The examiner must explain the rationale for all opinions. The explanation must discuss the significance of the Veteran's lower extremity numbness complaints during service and the January 1981 VA examination findings of L1 dermatoma. (i.e., whether it suggests the presence of underlying back pathology). The explanation of rationale should also include discussion of/comment on (1) the Veteran's acknowledgement of a pre-service compression fracture involving his lumbar spine, (2) the impact of the Veteran's duties during service on his spine, (3) the suggestion in the January 1981 VA examination report that the Veteran's right foot sensory loss (now service-connected) had onset during service due to "nerve root irritation in the right lumbar area," and (4) the December 2008 and July 2012 medical opinions by Dr. Klingensmith that the Veteran's back diagnoses are related to his duties during military service. The examiner is also asked to comment on any credibility question raised by the record (i.e., by conflicting reports). 2. The RO/AMC should then review the entire record and readjudicate de novo the Veteran's claim of service connection for a back disability. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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 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). _________________________________________________ George R. Senyk 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) (2013).