Citation Nr: 1335829 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 12-04 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from September 1980 to September 1983 and September 2001 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. A review of the Veteran's virtual VA claims file reveals that all documents contained therein is duplicative of the records in the paper claims file or irrelevant to the issue on appeal. 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 Veteran was afforded a VA examination in July 2010 in connection with his claim for service connection for a low back disorder. Following a review of the claims file and medical history as well as a physical examination, the examiner diagnosed the Veteran with degenerative joint disease of the lumbosacral spine with chronic low back pain. He also discussed the Veteran's low back strain in service in July 1982 and noted the Veteran's lay assertions as to recurrent low back pain in the 1980s and 1990s that was treated by a chiropractor. However, the examiner observed that, other than the service records, the Veteran's medical records are from more recent years. Given the available information, he stated that he could render an opinion without resorting to mere speculation. The chiropractic treatment records cited by the Veteran at his July 2010 VA examination are not of record. Therefore, upon remand, an attempt should be made to obtain such records. Moreover, an additional medical opinion is needed in this case. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a low back disorder. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. A specific request should be made for authorization to obtain records from any chiropractor that he has seen since service. If any of the records requested are unavailable, the RO/AMC should document the claims file to that effect. 2. After any outstanding treatment records have been obtained, the RO/AMC should refer the Veteran's claims folder to the July 2010 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any low back disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran's current low back disorder is related to his symptomatology in service or is otherwise related to his military service. In so doing, the examiner should consider the Veteran's 1982 back injury in service, his lay assertions as to continuing pain in the 1980s and 1990s, and the positive medical nexus opinions provided by Dr. H.K. and Dr. J.S. In rendering the opinion, the examiner should not resort to mere speculation. Instead, he or she should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board 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). _________________________________________________ JESSICA J. WILLS 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).