Citation Nr: 1333183 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-48 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a thoracolumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from December 1988 to December 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefits sought on appeal. The Veteran appealed that decision, and the case was referred to the Board for appellate review. A hearing was held on August 16, 2012, in Denver, Colorado, before the undersigned, who has been designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. After the August 2012 hearing, the Veteran submitted additional evidence in support of his claim which was accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2013). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After review of the record, the Board finds it necessary to remand the Veteran's claim in order to allow VA to fulfill its duty to assist the Veteran in developing his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran was examined for enlistment into the United States Marine Corps in February 1988, and this examination report does not reflect any prior or current symptomatology of the low back. He entered active duty approximately ten months later, on December 6, 1988. Three days after entering active duty, the Veteran sought treatment for intermittent low back pain occurring since a prior motor vehicle accident. Although it is clearly noted that this accident occurred in May, the notation of the year is illegible. A December 18, 1988, record also reflects the Veteran's reports of a prior motor vehicle accident, but again, the hand-written date is unreadable. In sum, the Veteran's service treatment records reflect five instances of treatment for low back pain. In-service diagnoses were muscle spasms and mechanical low back, although X-ray testing was not completed. The Veteran's service treatment records dated after June 1990, to include the November 1994 separation examination report, are devoid of complaints of or treatment for symptomatology of a low back disability. The Veteran's post-service treatment records show that degenerative changes of the thoracic spine were initially identified in a May 2008 chest X-ray. Follow-up X-ray and magnetic resonance imaging (MRI) testing completed in August 2008 and October 2008 reflect degenerative disc disease and degenerative joint disease of the lumbar spine. Every veteran shall be taken 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 the examination, acceptance, and 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 (West 2002); 38 C.F.R. § 3.304(b) (2013). Thus, there is a rebuttable presumption of soundness unless a condition is noted at entry. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA 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. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Although a low back disability is not noted on the February 1988 enlistment examination report, the December 2008 service treatment record showing complaints of low back pain only three days after entrance to active duty and referencing a prior motor vehicle accident raises the possibility of a pre-existing low back disability which may have been aggravated during his service. Although the Veteran was provided a VA examination in connection with this claim in February 2009, the examiner did not note the December 1988 references motor vehicle accident or provide opinions concerning the possibility of a pre-existing low back disability or in-service aggravation of such. Accordingly, the Board concludes that the February 2009 VA examination is inadequate for the purpose of adjudicating the Veteran's claim, and directs that he should be provided another examination in an attempt to obtain adequate opinions which address these pertinent matters. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Next, in furtherance of the duty to assist, VA will make reasonable efforts to obtain relevant records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. Additionally, the Veteran must cooperate fully with VA's reasonable efforts to obtain relevant records from private medical care providers. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). At his August 2012 hearing, the Veteran indicated he continued to receive private treatment for his low back disability from several providers, to include injections and chiropractic treatment. See the August 2012 hearing transcript at page 4. While the claims file contains private treatment records from various facilities and medical providers, there are no records of chiropractic treatment or private treatment records of any kind dated after the Veteran's August 2010 surgery for a hemilaminotomy and diskectomy. Further, although there is an indication that the Veteran was involved in a pre-service motor vehicle accident, there have been no actions undertaken to obtain treatment records pertaining to this event. The Board notes that such records, if extant, may be critical in determining whether the Veteran had a low back disability which clearly and unmistakably pre-existed his service. Therefore, the Veteran should be requested to identify all outstanding private treatment records which may be pertinent to his current claim, to specifically include all records dated after August 6, 2010, all records of private chiropractic treatment, and any records concerning his pre-service motor vehicle accident. In light of the recent changes to the 38 U.S.C.A. § 5103A (2)(B), two attempts must be undertaken to obtain any private treatment records identified by the Veteran or a formal finding that a second request for such records would be futile must be made. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). Finally, as noted above, the record reflects that the Veteran underwent an enlistment examination in February 1988, but he did not enter into active duty until December 1988. Although the Veteran's DD Form 214 reflects that he did not have any prior active or inactive service upon entrance to active duty on December 6, 1988, the Board concludes that further efforts to clarify the Veteran's service, if any, from February 10, 1988, to December 5, 1988, must be undertaken. This is necessary in the present case because, if the motor vehicle accident occurred in May 1988 and the Veteran was serving in the Reserves or National Guard at that time, any residual disability stemming from this accident would not pre-exist his service, but rather, would be incurred during service. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all non-VA health care providers who have treated him for a low back disorder. Specifically, the Board is interested in all private treatment records dated after August 6, 2010, all records of private chiropractic treatment, all records concerning his pre-service motor vehicle accident in the 1980's, in addition to any others identified by the Veteran. After securing appropriate releases from the Veteran, make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. Contact the Veteran and request that he clarify whether he had any military service from February 10, 1998, to December 5, 1988. 3. If the Veteran claims any military service from February 10, 1998, to December 5, 1988, contact any appropriate record repository, to include the National Personnel Records Center (NPRC) and the Records Management Center (RMC), to request the complete service personnel records pertaining to this service, to include service in any branch of the Reserves and/or National Guard. Thereafter, verify the dates of each period of active duty for training, inactive duty training and active duty that he attended from February 10, 1998, to December 5, 1988. Prepare a summary of this information and associate it with the claims file. 4. Thereafter, schedule the Veteran for a VA examination of his thoracolumbar spine. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2013).) The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should identify all current thoracolumbar spine disabilities. Based on a review of the evidence of record, the examiner should provide an opinion as to the following: a) Did the Veteran have a thoracolumbar spine disability which clearly and unmistakably (undebatably) pre-existed his service? b) If the examiner's response to question (a) is affirmative, the examiner is also asked to opine whether it can be concluded with clear and unmistakable (undebatable) certainty that the pre-existing thoracolumbar spine disability did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease. c) If the examiner determines that a current thoracolumbar spine disability did not clearly and unmistakably exist prior to service, the examiner is requested to state whether it is at least as likely as not (50 percent probability or greater) that any current thoracolumbar spine disability began during any period of the Veteran's service or is related to an event of such service. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. Because, by its very nature, a medical opinion is just that, an opinion rather than a statement of certainty, the Board recognizes that conjecture, tempered by the examiner's medical expertise and experience, is a component of a medical opinion. If the examiner cannot provide any requested opinion without resorting to mere speculation, such should be stated along with a complete explanation for that conclusion. 5. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action(s). 6. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).