Citation Nr: 1332540 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-36 146A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for right hip disability. REPRESENTATION Appellant represented by: John E. Walus, Attorney ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from February 1990 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction over the case was subsequently transferred to the RO in Detroit, Michigan. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The appeal is REMANDED to the RO. REMAND The Board finds that additional development is required before the Veteran's claims of entitlement to service connection for lower back and right hip disabilities are decided. The Veteran has reported that he has back and right hip disabilities as a result of active service. A review of the Veteran's service medical records shows that he complained of low back and right hip pain in June 1990 and October 1990, while in active service. In June 1990, the Veteran reported to the medical staff that he was lifting very strenuously when the injury occurred. He denied any history of trauma or injury. The physical examination did not reveal any abnormalities. The Veteran was told to return when he was symptomatic. The service medical records also show five complaints of right hip pain in October 1990, with the Veteran stating that his right hip had been hurting him for the past five months, and complaining of pain in his right buttock. The Veteran was diagnosed with soft tissue injury and piriformis pain and muscle spasms, and prescribed stretching, with limitations on running, lifting, and climbing up and down from vehicles. During one of the visits, the doctor also injected the Veteran with Lidocaine at the point of maximum tenderness. The Veteran separated from service in February 1993. There is no separation examination of record. Therefore, it cannot be ascertained whether the Veteran experienced any back or right hip issues when he exited service. In July, August, and September 2008, the Veteran reported to the VAMC, stating that his lower back and right hip had been giving him trouble since service, where he reported being diagnosed with back strain. The Veteran stated that his current psychiatric medication, Seroquel, had caused his back to hurt again. The doctor noted that the Veteran had no known low back or right hip injury, except for the reported sprain in-service. The doctor did not make any specific objective findings, and prescribed pain medication. During a February 2009 appointment, the Veteran again mentioned that he had back and hip pain for years, and requested a Vicodin refill. The record also shows that the Veteran presented with back pain to a private hospital in October 2009. He was diagnosed with back pain, given pain medication, and discharged home. The Veteran has submitted three letters on his behalf. K.M. wrote that in 1996, he got the Veteran a job and that the Veteran missed some time at work because of a back problem he had. K.M. stated that the Veteran lived with him and his family at two separate times over the years, and K.M. recalled at least two occasions when the Veteran was in pain and could barely walk for several days because of back pain. K.M. tried to convince the Veteran to go see a doctor, but the Veteran refused to go, saying that that a doctor would only give him pain medication. E.P. wrote that he had known the Veteran since 1999, and that the Veteran lived with E.P. and his wife on and off between 2000 and 2005. E.P. stated that, during that time, the Veteran worked many jobs and experienced back problems, and that he lost one of the jobs because he was unable to return to work due to his back. E.P. recalled two times when the Veteran was off his feet for days due to his back issues. E.P.'s wife, K.P., wrote that she had known the Veteran for about ten years. She recalled that the Veteran had hurt his back because she used to tease him for lying on the couch and not being able to do anything. In April 2009, the Veteran underwent a VA examination to determine the nature and etiology of his lower back and right hip disabilities. The examiner diagnosed degenerative disc disease of the lumbosacral spine and subjective radiculopathy in the right lower extremity. The examiner opined that it was not likely that the Veteran's lower back and right hip disabilities were related to his active service complaints. However, the examiner did not adequately address the five episodes of lower back and right hip pain during service, and based the opinion solely on the assertion that the Veteran's service medical records showed only complaints of soft tissue injury to the lower back and right hip in active service. The examiner also stated that there were no chronic lower back and right hip conditions as based on the available service medical records, and that there were no chronic lower back and right hip conditions immediately after the Veteran separated from service. The examiner noted that VAMC records showed complaints of lower back and right hip problems starting in 2008, when the Veteran started coming in for physical therapy and had X-rays performed. The examiner noted that the records were silent for complaints of lower back and right hip issues until 2008 and that while the Veteran had three instances of lower back and right hip issues in active service, both were acute and treated without further complaints until 2008. The examiner did not address the Veteran's statements, or the other lay statements submitted, regarding the onset and continuity of his symptoms. The Board finds that the April 2009 opinion is incomplete for adjudication purposes. The examiner did not address the etiology of the Veteran's lower back and right hip disability in a way that would allow the adjudicator to ascertain whether the disability was the result of an in-service injury. The examiner did not opine as to whether the type of injury which the Veteran sustained in-service could possibly cause chronic lower back and right hip pain. The examiner also did not discuss the in-service diagnosis of piriformis pain and muscle spasms, or the fact that the Veteran's current complaints appear similar to those that led to the diagnosis of piriformis pain and muscle spasms during service. The examiner did not provide a rationale for the evidence of record except that the examiner concluded that the episodes of lower back and right hip pain that the Veteran experienced in-service were not evidence of a chronic problem, without discussing the fact that they were only several months apart. The examiner appears to have not considered all episodes of treatment during service. In addition, the examiner improperly relied on the absence of evidence in the Veteran's service medical records and post-service records to provide a negative opinion and did not consider the Veteran's statements, or the lay statements, of onset and continuity. Examinations inadequate where, as here, the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in service medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran should be provided a new VA examination to determine the nature and etiology of any current lower back and right hip disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, current treatment records should be obtained prior to a decision being rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and provide authorization for VA to obtain medical records from any private health care providers for the treatment of any back or hip disability. Obtain those records and associate the records with the file. If any medical records are not available, follow the applicable provisions of 38 C.F.R. § 3.159. 2. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate the records with the file. If any medical records are not available, follow the applicable provisions of 38 C.F.R. § 3.159. 3. Then, schedule the Veteran for a VA examination of the back and right hip disabilities by an appropriate examiner. The examiner must review the claims file and should note that review in the report. Any necessary studies or tests should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back and right hip disabilities are related to service, or to complaints of and treatment for back and hip pain during service. The examiner should consider the Veteran's medical, occupational, and recreational history since service, and his claim of continuing symptoms since service. The examiner should consider the lay statements regarding post-service back problems. The examiner should also specifically address the fact that the in-service episodes of lower back and right hip pain were several months apart and the diagnosis of soft tissue injury and piriformis pain and muscle spasms during service. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).