Citation Nr: 1336815 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-16 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran had active duty service from June 2008 to February 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that denied service connection for low back disability. The Board notes that the Veteran submitted a timely notice of disagreement with the initial 50 percent disability rating assigned for major depressive disorder in the August 2010 rating decision. However, following the issuance of a statement of the case with respect to this issue in November 2010, the Veteran submitted a June 2011 substantive appeal in which he specifically limited his appeal to exclude the issue of an increased disability rating for major depressive disorder. He checked box (B) in section 9 of his VA Form 9, identified his low back condition, and provided argument with respect to that issue in section 10. See Evans v. Shinseki, 24 Vet. App. 292 (2011). The Board has limited its consideration accordingly. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for a low back disability. The Veteran has asserted that he has a low back disability that is related to his occupational duties during active service, to specifically include falling off the back of a truck and landing on his back in 2009. His description of the event is deemed credible. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (held that the Board may not find that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time). Indeed, while not necessarily documenting a low back injury, the Veteran's STRs reveal that he frequently complained of low back pain throughout 2009 and in early 2010, prior to his separation. The only diagnosis of a low back disability made during active service was that of low back strain. A November 2009 examination report indicated that the thoracolumbar spine exhibited a full range of motion. A contemporaneous lumbar spine X-ray was negative. However, a straight leg raising test was positive on the right. At his June 2010 VA examination, the Veteran complained of back pain and stiffness and was afforded an X-ray, which revealed spondylolysis. The examiner noted that he was unable to determine whether the spondylolysis was incurred or aggravated in service. Such was based on the lack of documented in service injury. In November 2010 he was afforded an MRI which revealed that he had degenerative changes and disc disease, with mild to moderate right-sided neural foraminal narrowing with mild left sided neural foraminal narrowing. A VA examiner commented in August 1011 that he was unable to determine whether or not the Veteran's spondylolysis had its onset during his active service without resorting to speculation. Neither examiner seemed to consider the Veteran's clearly documented in-service complaints of pain. Moreover, as noted, the June 2010 examiner summarily discounted the Veteran's report of in-service injury. Based on the Veteran's reports of falling off a truck in service, his in service treatment for back pain and the post-service MRI findings of degenerative changes and disc disease, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present low back disability. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide an examination it is obligated to insure that the examination is adequate). Furthermore, although arthritis is a presumptively service connected disability, whether or not degenerative disc disease (DDD) is considered arthritis for the purpose of presumptive service connection is unknown and also needs to be determined by a VA examiner. Additionally, as noted above, the Veteran received a lumbar spine MRI in November 2010 at the VAMC. While the MRI report is referred to in the August 2011 VA examination report, the actual MRI report itself is not currently of record. Attempts to obtain the November 2010 VAMC lumbar spine MRI report and any other outstanding treatment records should be made prior to a decision being rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records, to specifically include the November 2010 VAMC lumbar spine MRI report. Any additional treatment records identified by the Veteran should be obtained. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Then the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any currently present low back disability. The claims files, to include any pertinent evidence in Virtual VA that is not contained in the claims file, must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner is asked to provide an opinion as to the following: a. Whether the Veteran currently suffers from arthritis of the lumbar spine. b. Whether DDD is considered an arthritic condition. c. If the Veteran does not have a low back disability that would be characterized as arthritis, is it is at least as likely as not (a 50 percent or better probability) that any currently present low back disability had its onset in service or is etiologically related to the Veteran's active service. The examiner should specifically state whether the Veteran's documented complaints of low back pain in-service was the precursor to his current disability. The examiner should also presume the Veteran is a reliable historian with regard to his report of falling off of the truck during active duty in 2009. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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 A. HERMAN 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).