Citation Nr: 1336024 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-28 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1992 to August 1994. In October 2004, the Veteran filed a claim for service connection for a back condition. In July 2005, the RO issued a rating decision that addressed other claims filed in October 2004, but did not address the Veteran's claimed back condition. In August 2006, he submitted a statement requesting to "reopen" his back condition claim. In July 2007, the RO issued a rating decision denying service connection, and in March 2008, the Veteran submitted a letter stating "I...would like to reopen my disability claim for my back injury." The RO treated this letter as a claim to reopen and issued another rating decision, in October 2008, denying service connection. In November 2008, the Veteran submitted a VA Form 21-4138 (Statement in Support of Claim) regarding a scheduled VA examination for his back claim. The RO treated this statement as a request to reopen the Veteran's claim and issued a rating decision in March 2009, continuing the denial of service connection. In April 2009, the Veteran submitted a letter that was accepted by the RO as a notice of disagreement. The RO then issued a July 2009 statement of the case, which denied service connection for a back condition. The Veteran filed a VA Form 9 in August 2009. As the Veteran's March 2008 letter was received within one year of the July 2007 rating decision, the Board will construe this as a notice of disagreement as opposed to an application to reopen a previously denied claim. As such, the July 2007 rating decision did not become final and is the rating decision currently on appeal In his August 2009 VA Form 9, the Veteran requested a hearing before the Board. He was scheduled for a February 2011 hearing and was notified of this hearing in a January 2011 letter. The Veteran did not appear at his scheduled hearing and requested, in a February 2011 letter, that the RO forward his claim to the Board of Veterans' Appeals without first providing him with a hearing. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The evidence within the virtual file has been carefully reviewed by the Board. 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 asserts that his back disorder is related to his military service. During his VA examination in February 2009, he reported that he injured his back on-board ship sometime in 1993 or 1994. In February 2009, the Veteran was afforded a VA examination to determine whether his back disorder was related to service. The examiner diagnosed lumbar back strain and opined that it is less likely as not related to his complaints of low back pain in service. The examiner's rationale was as follows: Veteran had a subjective complaint of injury during service and documentation of low back pain noted on exit exam. This pain has become chronic and more severe since his discharge from the military. Veteran has worked as a general laborer in manufacturing since his discharge from the military. On exam, he has almost normal range of motion with pain, possibly related to muscular strain. Xrays show 1. No acute fracture. 2. No degenerative disc space disease. I believe that the veteran's current back pain is less likely related to his military service. The veteran had a single military injury which was a one-time event and it is highly unlikely that this single event started a process that led to deterioration of his spine. This is not supported by medical literature. The veteran has worked in a job requiring heavy physical labor since discharge. His current back pain is more likely as not related to his current job. I would surmise that he has frequent heavy lifting over many years related to his occupation or that his chronic symptoms are truly related to the intervening years of hard work and maybe poor conditioning, poor lifting techniques, etc. The Court has held that when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the February 2009 VA examination is inadequate for rating purposes. Here, the examiner opined that the Veteran's back pain is due to "frequent heavy lifting over any years related to his occupation or that his chronic symptoms are truly related to the intervening years of hard work..." but this statement fails to adequately address the Veteran's contention that he has had back pain since separation from service. Additionally, some medical records show the Veteran worked as a pizza delivery person, and a computer operator. A full employment history should be obtained. The examiner did not sufficiently address the Veteran's service treatment records (STRs). During the examination, the Veteran reported to the examiner that his back injury occurred in 1992 when "he was carrying tie down chains while stationed in Lamore, CA." He stated that his back pain had gotten progressively worse. The examination report does not include a discussion of any other incident reported in Veteran's STRs. However, treatment records dated May 9, 1994, describe an incident in which the Veteran fell into a pool and his "[right] hip hit the side of the pool." The Veteran was noted to "ambulate[] [with] a noticeable limp." This injury should be considered in a discussion of the etiology of the Veteran's back condition, particularly in light of the Veteran's current complaints of pain in the right lumbar region. See VA Examination report of February 2009. Additionally, the examiner failed to address the significance and possible etiology of the mild anterior osteophytes formation at the L3 vertebral body which was noted upon X-ray take in conjunction with the 2009 VA examination. In addition, even though the Veteran reported that he was not currently working at the time of the examination, the examiner opined that the Veteran's back pain was "related to his current job." The examiner diagnosed the Veteran with a lumbar back strain but did not address his previous diagnoses of lumbar spondylolysis and lumbar radiculopathy. Treatment records show that the Veteran was diagnosed with lumbar spondylolysis in December 2002 and again in August 2007. He was diagnosed with lumbar radiculopathy in January 2007. The record indicates that there is relevant evidence that has not been associated with the claims file. The RO should attempt to obtain the Veteran's complete up-to-date VA and private treatment records. The claims file includes records dated from December 2002, but treatment records indicate that there are earlier relevant records. In this regard, the Board notes that December 2002 VA treatment records state, "Some old medical records brought to this appointment mostly from 1996-98, also has lumbar xrays and MRI (which he will bring back - we did not keep)." In June 2008, the RO submitted a VA Form 10-7131 to request outstanding treatment records dated between September 1994 and December 2002. The form requested that the VA medical center provide a negative response if no such records were available. These records have not been obtained and a negative response has not been associated with the claims file. The record indicates that there are relevant private treatment records that have not been associated with the claims file. April 2003 VA treatment records indicate that the Veteran had been treated for back pain at an outside pain clinic by Dr. Kern, but no such records are in the claims file. Given the foregoing, the Board finds that, on remand, the Veteran should be scheduled for an appropriate examination to determine the nature and etiology of his back disorder. In addition, the RO/AMC should attempt to obtain the Veteran's up-to-date VA and private treatment records, as well as any relevant ship logs from the Veteran's service on the U.S.S. Carl Vinson. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his back disorder prior to December 2002. Specifically, request that the Veteran provide information regarding treatment with Dr. Kern and any other doctor or pain specialist who has treated him for complaints associated with his lower back. After securing the necessary release, attempt to obtain copies of all medical records from any identified treatment sources, including any VA treatment records not already of record, and associate them with the claims folder. 2. Schedule the Veteran for appropriate examination to determine the nature and etiology of his claimed back disorder. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete work and medical history, if possible. Based on a review of the claims file, the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed back disorder, the examiner should offer comments and an opinion addressing the following: Is it at least as likely as not that any currently diagnosed back disorder is a direct result of the Veteran's time in active duty service? The VA examiner is to specifically address the following: (i) the Veteran's report of low back pain on his May 1994 separation examination; (ii) the Veteran's report of his initial back injury in 1992; (iii) May 1994 STRs documenting an in-service hip injury; and (iv) the Veteran's prior diagnoses of lumbar spondylolysis and lumbar radiculopathy, and any other significant findings that come to light in any additional medical records. A complete rationale for all opinions and conclusions reached should be provided. If the examiner believes that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the claim for service connection for a back disorder. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran the requisite period of time to respond. The appellant 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). _________________________________________________ MARJORIE A. AUER 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).