Citation Nr: 1336884 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-25 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a lower back disability. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970, which included one year of service n the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction has since been transferred to the RO in Chicago, Illinois. The Veteran requested a hearing before the Board in June 2010; however, in August 2012, he withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2013). In November 2012, the Board reopened the claim for service connection for a lower back disability, and remanded the reopened claim to afford the Veteran a VA examination and medical opinion addressing the etiology of his claimed lower back disability. As the medical opinion obtained is inadequate, 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 contends that his lower back disability, for which he first sought service connection in November 1972, is attributable to a back injury he sustained during his service in Vietnam. The medical treatment of record chronicles the Veteran's complaints of and treatment for lower back pain since that time, as well as his consistent reports of experiencing lower back pain since his in-service injury. Pursuant to the Board's remand directives, the Veteran underwent a VA examination in February 2013. The examiner stated that the Veteran's current lower back disability, degenerative disc disease/spondylitis, are common among those of the Veteran's age, and that this degenerative spinal condition was not due to the Veteran's in-service lower back injury. The examiner further stated that the nature of the Veteran's reported in-service lower back injury could have resulted in a contusion to his lower back or possibly a lumbar strain, but not degenerative spinal changes. However, the examiner failed to acknowledge or address the Veteran's diagnosis of lumbar strain during the appeal (as noted in 2007 VA treatment records), nor the Veteran's documented complaints of lower back pain since service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given these deficiencies, a new VA opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate medical professional regarding the potential relationship between the Veteran's lower back disability of lumbar strain and service. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The Veteran need not be reexamined unless deemed necessary in order to render the requested opinion. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar strain (which the examiner is to presume is a current disability for the purposes of this opinion) is related to service, i.e. had its onset during active service, or is related to the Veteran's reported in-service lower back injury, resulting in treatment for a lumbar strain. When rendering this opinion, the examiner is to consider the Veteran's reported in-service back injury and subsequent documented treatment and consistent complaints of experiencing lower back pain since service, to include the following evidence: * July 1974 treatment for chronic lumbar sprain, at which time the Veteran reported treatment for a back sprain after his in-service back injury; * November 1980 treatment for an exacerbation of the Veteran's prior chronic lumbar strain due to his involvement in a motor vehicle accident; * VA treatment for chronic lower back pain from 1987 through 1990, and a diagnosis of chronic lumbar strain on VA examination in June 1989; and * VA treatment for a back strain in 2007. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to 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). 2. Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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 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. 2013). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).