Citation Nr: 1332005 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-22 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbar spine disorder with associated lower extremity radiculopathy (claimed as bilateral spondylolysis with grade I spondylolisthesis with secondary bilateral lower extremity radiculopathy). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1976 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a lumbar spine disorder. The Veteran timely appealed that issue. Later, the Veteran also claimed associated bilateral lower extremity radiculopathy, which was denied in a December 2008 rating decision and also timely appealed to the Board. The Board has combined those two issues into a single issue in this case as the radiculopathy claim is essentially an extension of the lumbar spine claim. The Veteran initially requested a Board hearing before a Veterans Law Judge in his July 2007 substantive appeal, VA Form 9. However, in a December 2008 correspondence, the Veteran withdrew that request for a hearing. Since that time, the Veteran has not reasserted his right to a hearing before the Board. The Board will therefore proceed without a hearing at this time. This case was before the Board in March 2011, when the Board reopened the lumbar spine claim and remanded it for further development at that time. The case was returned to the Board in September 2012, at which time the Board again remanded it for further development. That development having been completed, the case is again returned to the Board at this time for further appellate review. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In previous Board decisions, the Board notes that "it appeared" that the Veteran's lumbar spine disability pre-existed service, as it was noted that he had a Gill procedure on his lumbar spine in 1973 as a result of his severe symptomatology associated with his L5-S1 radiculopathy of the right leg at that time. This history was noted in the Veteran's July 1976 medical board examination; however, that medical board examination occurred two months after the Veteran's induction into service. In the April 1976 enlistment examination, the Veteran's lumbar spine was noted as being normal and there was no noted history of back pain or lumbar spine surgery at that time. Thus, while it appears that the Veteran definitively had a lifelong history of back pain and radicular symptomatology which resulted in a 1973 Gill procedure prior to entrance into service, such was not noted on enlistment and induction into service. Accordingly, legally, the Veteran is entitled to the presumption of soundness in this case. See 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Board acknowledges that the October 2012 examination attempted to answer the questions the Board previously asked, though it appears that some critical steps were missed, including by the Board's own oversight in this case. Accordingly, the Board finds that this case must once again be remanded in order to obtain another VA examination which adequately addresses the appropriate legal questions in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Dallas VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his lumbar spine and associate radiculopathy disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA orthopedic examination in order to determine whether his current lumbar spine and associated bilateral lower extremity radiculopathy disorders pre-existed and were aggravated by military service. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify any lumbar spine and bilateral lower extremity radiculopathy disorders found, including bilateral spondylolsis with grade I spondylolisthesis. The examiner should then address the following: (a) Whether the Veteran's lumbar spine and associated bilateral lower extremity radiculopathy disorders clearly and unmistakably pre-existed his military service. The examiner should discuss the July 1976 medical board examination and other evidence of record demonstrating a 1973 Gill procedure for low back pain, buttock pain, and bilateral leg pain as a result of severe symptomatology associated with right leg radiculopathy at that time. The examiner should additionally note the Veteran's normal lumbar spine examination on enlistment in April 1976. If clear and unmistakable evidence exists, the examiner should explicitly note which evidence he/she relies on for that finding. The examiner should then move to (b) of this inquiry. If clear and unmistakable evidence cannot be shown that the Veteran's lumbar spine and associated bilateral lower extremity radiculopathy disorders pre-existed service, then the examiner should move to inquiry (c). (b) Whether the Veteran's lumbar spine and associated bilateral lower extremity radiculopathy disorders clearly and unmistakably were not aggravated (e.g., made permanently worse beyond the normal progression of that disease) by the Veteran's military service. The examiner should discuss the Veteran's lack of lumbar spine pain or pathology at enlistment into military service in April 1976, as well as the notation in the July 1976 medical board examination that the Veteran "had done fairly well" since the 1973 Gill procedure prior to enlistment to active service in June 1976. The examiner must specifically discuss the prima facie showing of an increase in symptomatology during military service between the April 1976 enlistment examination and the July 1976 medical board examination findings. The examiner should also discuss the Veteran's lay statements of record regarding any increase in/aggravation of symptomatology as a result of service. With regards to any increase in symptomatology demonstrated during military service, the examiner should specifically address whether such an increase clearly and unmistakably was the result of the normal progression of that disease, or not. The Board notes that there is a presumption of aggravation and that the examiner must clearly and explicitly articulate the evidence relied upon for his/her finding if a finding of non-aggravation is found. If the examiner fails to find clear and unmistakable evidence of either pre-existence (in (a)) or non-aggravation (in (b)), the examiner is instructed to find as conclusive fact that the Veteran was physically sound on entrance into service with respect to his lumbar spine and associated radiculopathy disorders. The examiner should then move to inquiry (c) below. (c) Whether the Veteran's lumbar spine and associated bilateral lower extremity radiculopathy disorders more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are otherwise related to the Veteran's military service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a lumbar spine disorder with associated lower extremity radiculopathy. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ J. A. MARKEY 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).