Citation Nr: 1331930 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-30 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service connection for low back pain to include spinal stenosis; bilateral hearing loss; and tinnitus was denied therein. The Veteran timely appealed these determinations. In January 2012, the Board denied service connection for bilateral hearing loss and tinnitus. These issues accordingly are no longer part of this matter. The Board recharacterized the low back pain to include spinal stenosis issue as one of a low back disability and remanded it for additional development. Based on review of the Veteran's paper claims file and his Virtual VA electronic claims file, this single issue matter once again is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. REMAND Although the Board regrets the delay of a remand, adjudication of the Veteran's claim for service connection for a low back disability cannot be undertaken yet. Additional development is needed to ensure that he is afforded every possible consideration. VA indeed has a duty to assist him in substantiating the benefit sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA must make reasonable efforts to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). When the existence of such records that are not in the custody of the federal government is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). Here, the Veteran submitted private treatment records concerning his low back prior to, and following, the Board's January 2012 remand. They do not reflect that he has undergone any low back surgery. However, he indicated upon VA medical examination in February 2012 that he had surgery on his spine in June 2011. Diagnostic testing indeed shows that a laminectomy was performed at L2 through L5 with posterior rod and screw fixation of L4/L5. Treatment records in this regard undoubtedly exist, but none have been associated with the paper or Virtual VA electronic claims file. As such, the Veteran must be asked to either submit these treatment records along with any other outstanding private treatment records or provide enough information to identify and locate them along with an authorization for their release to VA. If he provides the information and authorization, an initial request for the records must be made. Follow-up requests as well as notification to him and his representative if they are unsuccessful also must be made as necessary. Furthermore, if VA undertakes the effort to provide a medical opinion with respect to an issue of service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical opinion is adequate when it allows the Board to perform a fully informed adjudication. Id. Consideration must be given to the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). This helps ensure that the factual premises underlying the medical opinion are accurate, as is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for the opinion also must be clearly and fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. The Board determined in its January 2012 remand that the VA medical opinion rendered as part of an August 2009 examination was inadequate. Another VA medical examination complete with an adequate opinion thus was directed. Specifically, an opinion was to be rendered regarding whether it is at least as likely as not that the Veteran's current low back disability had its clinical onset during his service or is otherwise related to his service. The rationale was to include addressing his in-service complaints about and receipt of treatment for his low back in 1965 as the possible onset of or precursor to this disability. His reports of experiencing low back symptoms ever since also was to be acknowledged and discussed in the rationale. As noted above, the Veteran underwent a second VA medical examination in February 2012. It was opined therein that the Veteran's low back disability was less likely as not incurred in or caused by his service. The rationale provided was that his in-service low back problem resolved prior to his discharge. His current low back disability was attributed to normal wear and tear as well as extensive lifting on the job for over 22 years after his discharge. The Veteran has the right to compliance with the directives in a Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Strict compliance is not necessary, but there must be at least substantial compliance. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Here, there has not been even substantial compliance with the Board's directives. The rationale excluded the Veteran's in-service complaints about, and receipt of, treatment for his low back in 1965 as the possible onset of or precursor to his current low back disability-but made no reference to, let alone consideration of, his reports of experiencing low back symptoms ever since. Why the Veteran's current low back disability is attributable to normal wear and tear as well as extensive lifting on the job for over 22 years after his discharge finally was not explained. Such an explanation is particularly crucial with respect to this post-service lifting, since he contends and service treatment records confirm that lifting caused at least some of his 1965 in-service low back problems. Of final note, the aforementioned discovery of outstanding private treatment records means that consideration was not given to the Veteran's entire medical history. Accordingly, it follows that another VA medical opinion is needed. Arrangements shall be made in this regard after reasonable efforts have been exhausted to obtain the Veteran's outstanding private treatment records. Another VA medical examination is not required unless deemed necessary. Given the above, a REMAND is directed for the following: 1. Ask the Veteran to either submit all outstanding private treatment records regarding his low back, to include those related to his June 2011 surgery, or provide enough information to identify and locate them along with an authorization for their release to VA. If he provides the information and authorization, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the paper or Virtual VA electronic claims file. If requested records ultimately are not received or are received but are incomplete, notify the Veteran and his representative pursuant to established procedure. Document the paper or Virtual VA electronic claims file claims as appropriate in this regard. 2. After completion of the above, arrange for a VA medical opinion to be rendered regarding the Veteran's low back disability. Review of the paper and Virtual VA electronic claims file must be undertaken, with such documented in a report to be placed therein. If deemed necessary, the Veteran may be scheduled for another appropriate VA medical examination. Details of the interview of him and the results of all tests conducted at such an examination must be included in the report. An opinion thereafter shall be rendered in the report as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current low back disability had its onset during or otherwise is related to his service. A clear and complete rationale (explanation of why and how the opinion was reached) shall be provided in the report. This includes a discussion of the pertinent medical principles, with a citation for or the attachment of any literature referenced, as it relates to the pertinent evidence. Service treatment records showing the Veteran's in-service complaints about and receipt of treatment for his low back in 1965, to include due to lifting, therefore must be addressed. His reports of experiencing low back symptoms ever since also must be addressed. Finally, the previous VA medical opinion and post-service treatment records shall be addressed. If an opinion cannot be provided without resort to speculation, the rationale shall include a discussion of whether this is because more information is needed, information that cannot be obtained is needed, the limits of current medical knowledge have been exhausted, there are multiple possible etiologies with none more likely than not the cause, or some other reason. 3. Then, readjudicate the Veteran's claim for service connection for a low back disability. If the decision remains adverse to him, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them time to respond. A copy of the SSOC shall be placed in the paper or Virtual VA electronic claims file, and this matter should be returned to the Board. No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that he is obligated to cooperate with VA in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His also is advised that he has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. Indeed, the law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).