Citation Nr: 1335110 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-05 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1966 to September 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which in part denied service connection for degenerative disc disease of the lumbar spine. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are duplicative of the evidence in the paper claims file. 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 The Veteran essentially contends that he has degenerative disc disease of the lumbar spine due to injuries incurred in-service. The Veteran's service treatment records show that he was given an examination in March 1967 for the purpose of airborne training, during which he was found qualified for training. In December of 1967, the clinician noted that the Veteran had a history of pain in the lower back, but no prior treatment. The Veteran stated that he had slipped while lifting a motorcycle and twisted his back, then had pain through the night that subsided in the morning. Later, the pain returned and became severe pain with movement restriction. He could bend sideways about 50 degrees and forward about 45 degrees. In August of 1968, upon separation from service, a lumbar spine examination was requested, and the examiner noted the Veteran had minimal rotary scoliosis otherwise within normal limits. The Veteran stated in his claim submitted in November 2010 that while in the Panama Canal Zone he was in the process of moving 55 gallon oil drums and slipped in the oil and strained his back and pinched a nerve. He stated he was treated in the Canal Zone, but continues to have pain. His November 2011 Notice of Disagreement (NOD) and February 2013 VA Form 9 Substantive Appeal both include lay statements that the Veteran had been in paratrooper training, which he indicated that he did not complete due to back pain and problems. He also requested his personnel records, stating that they would reference his time in paratrooper training. While the Veteran's service treatment and VA treatment records appear in the claims file, it does not appear that personnel records have been associated with the file as the Veteran requested. As such, in order to help corroborate the Veteran's contentions that he was in paratrooper training, the RO/AMC should obtain all of the Veteran's personnel records upon remand. Post-service records reveal that in April of 1994 the Veteran received treatment at a VA facility. The treatment report shows the Veteran had moderate degenerative changes in the mid-lower lumbar spine region which mainly consisted of small marginal osteophyte formation. No post traumatic vertebral deformity or focal bone lesions could be identified. Scaroilliac joints showed no abnormalities. In April 2008 the Veteran sought treatment at the Poplar Bluff, Missouri VAMC. He stated that in December 2007 he had been trying to carry a load of wood and felt his back snap, and then suddenly had a great deal of low back pain. He rated his pain score at a 2-3, which he said was an improvement over what it had been. An MRI showed a mild disc herniation of L3-4 and L5-S1. He was prescribed physical therapy. In November 2008 an MRI showed a lateral small disc herniation at L-3-4, and at that time the Veteran reported almost no pain. In August 2011, the Veteran was afforded a VA examination. In noting a diagnosis of degenerative arthritis of the lumbar spine and degenerative disc disease L2-S1, the examiner discussed the Veteran's service treatment records, medical history, work history, and the current examination findings. The examiner referenced the December 1967 incident where the Veteran slipped while moving a motorcycle, noting that the records showed that x-rays were obtained and there was no evidence of any acute osseous or adjacent soft tissue abnormality; the Veteran was diagnosed with a pinched nerve. The examiner opined that after reviewing the service treatment records, examining the Veteran, and questioning him about his work history, there was no injury noted to the back other than the listed injury sustained while on active duty (the lifting of the motorcycle). He noted that at the time of the in-service injury there was no evidence of disc herniation or fracture, and that while it was possible that the Veteran's back condition was a result of the injuries sustained while on active duty, it was not possible without resorting to mere speculation to state that the Veteran's current complaints were due to a single incident of injury noted in the service treatment records. He stated he was unable to make the connection between the single incident in-service and the Veteran's current degenerative lumbar spine condition. On review of the VA examination report and the Veteran's in-service and post-service history of back injuries, the Board finds that it is unclear whether the examiner considered the Veteran's lay statements regarding his in-service injuries, including the incident with the oil drum and the paratrooper training, in giving the opinion regarding the nexus between the Veteran's service and current lumbar spine disability. Therefore, the Board finds that another opinion is necessary to determine the etiology of the Veteran's lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all of the Veteran's personnel records, particularly those associated with the Veteran's assertions that he engaged in some paratrooper training. All efforts to obtain the additional evidence must be documented in the paper and/or electronic claims files. If the search for such records has negative results, documentation to that effect should be included in the claims files. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 2. The Veteran's claims file should be returned to the examiner who conducted the Veteran's August 2011 VA evaluation for the purpose of obtaining an addendum medical opinion. If the requested examiner is no longer available, another examiner should be asked to review the claims file and answer the questions posed below, or if this examiner determines that another examination would be helpful, the Veteran should be scheduled for a new VA examination. Please provide an opinion whether the Veteran's lumbar spine disability is as likely as not (50 percent or greater likelihood) caused by an in-service injury or injuries. All findings must be reported in detail and all indicated testing must be accomplished. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. In doing so, the examiner must consider: a. The Veteran's lay statements that he injured his back in-service while lifting oil drums, as well as his statements that he could not complete paratrooper training due to his "back problems." b. The Veteran's history of "back problems" recorded in his service treatment records during December 1967. c. The Veteran's post-service December 2007 back injury described in the VA treatment records. d. The Veteran's April 1994 MRI results showing moderate degenerative changes in the mid-lower lumbar spine region, and the November 2008 MRI results showing a mild disc herniation. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 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 A. PAPPAS 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).