Citation Nr: 1333990 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-45 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for lower back disability. REPRESENTATION Appellant represented by: Allen Gumpenberger, Alpha Veterans Disability Advocate ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from October 1972 to March 1973 and August 1973 to February 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In connection with this appeal the Veteran was scheduled to testify before the Board at a videoconference hearing at the VA RO in September 2013. The Veteran canceled his scheduled hearing. Therefore, his hearing request is deemed to have been withdrawn. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. 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 Board finds that additional development is required before the Veteran's claim of entitlement to service connection for lower back disability is decided. The Veteran has reported that he has a lower back disability as a result of his active service. The Veteran's July 1973 and August 1973 enlistment medical examinations are silent for any complaints of lower back pain, or any diagnosis thereof. A review of the Veteran's service treatment records shows that he complained of lower back pain in September 1973, while in active service. The Veteran reported to the medical staff that his rifle kept hitting his back when he was running, causing him lower back pain. The physical examination revealed an edema to the right-mid back. The Veteran was treated with hot soaks, aspirin, and balm. The service medical records reflect another complaint of lower back pain in November 1973. The physical examination did not show swelling or edema and no loss of motion, but the Veteran's back muscles appeared tight. He was, once again, prescribed balm and hot soaks. The Veteran was released from service in February 1974 due to a left femur stress fracture. No exit examination exists, so it cannot be ascertained whether the Veteran experienced any lower back issues when he exited service. In January 1976, the Veteran reported to the VAMC, stating that his lower back had been giving him trouble for three days. The doctor noted that the Veteran had no known [back] injury, except for the sprain in-service. The doctor diagnosed the Veteran with back strain, and prescribed massages, heat, and medication. In October 2009, the Veteran underwent a VA examination to determine the nature and etiology of his lower back disability. The examiner diagnosed lumbar spondylosis. She opined that it was less likely as not that the Veteran's lower back disability was related to his active service complaints. However, the examiner did not adequately address the two episodes of lower back pain during service, and based her opinion solely on the assertion that the Veteran's medical evaluation board and private treatment records were all silent for lower back complaints other than those identified during service. The examiner noted that VAMC records showed a complaint of lower back problems in January 1976 that started three days before the Veteran came in to seek medical treatment. The examiner noted that the records are silent for complaints of lower back issues until 1991 and that while the Veteran had two instances of lower back issues in active service, both were acute and treated without further complaints until January 1976. The examiner did not address the Veteran's statements regarding the onset and continuity of his symptoms. The Board finds that the October 2009 opinion is inadequate for adjudication purposes. The examiner did not address the etiology of the Veteran's lower back disability in a way that would allow the adjudicator to ascertain whether the disability was the result of an in-service injury - she did not opine as to whether the type of injury which the Veteran sustained in-service could possibly cause chronic lower back pain. She did not provide a rationale for the evidence of record insofar as she concluded that the two episodes of lower back pain that the Veteran experienced in-service were unrelated, without discussing the fact that they were only several weeks apart. She also failed to adequately address the January 1976 treatment records, which show that the Veteran complained of lower back pain and described the in-service lower back injury as his only previous back injury. In addition, the examiner improperly relied on the absence of evidence in the Veteran's service treatment records and post-service records to provide a negative opinion and did not consider the Veteran's statements of onset and continuity. The United States Court of Appeals for Veterans Claims (Court) has found 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 his service treatment 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 by another appropriate examiner to determine the nature and etiology of any current lower back disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (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 VA and non-VA health care providers for the treatment for a lower back disability. 2. Then, obtain all pertinent VA medical records, not yet associated with the claims file, and non-VA medical records that are identified by the Veteran. Associate those records with the file. If any medical records are not available, the applicable provisions of 38 C.F.R. § 3.159 must be followed. 3. Thereafter, regardless of whether additional documents are obtained, schedule the Veteran for an appropriate VA examination for his lower back disability by an examiner other than the examiner who conducted the examination in October 2009. The examiner should provide an opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's lower back disability is related to service, taking into account the Veteran's medical, occupational, and recreational history since service, and his claim of continuing symptoms since service. The examiner should also specifically address the fact that the in-service episodes of back pain were only several weeks apart and that at the time of the Veteran's first documented treatment after service in January 1976, the Veteran complained of lower back pain and described the in-service lower back injury as his only previous back injury. 4. The RO should review the claims folder to ensure that all of the remand directives have been accomplished, and should take any additional steps necessary to fully comply with the Board's remand. 5. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. 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 to it. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ Michael J. Skaltsounis Acting 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).