Citation Nr: 1336995 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-46 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a lumbosacral spine strain with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over the claim now resides with the RO in Indianapolis, Indiana. The Veteran testified before the undersigned at a September 2011 Video Conference hearing. The Veteran also presented testimony before a decision review officer at the RO in June 2010. Transcripts of the hearings are of record. 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 review of the evidence, the Board is of the opinion that further development is required before the Board decides the issue on appeal. The Veteran was afforded a VA examination in September 2009, to determine the etiology of his claimed lumbar spine disability. The examiner noted the Veteran's reports of one-time treatment during service in 1964 for lower back pain, with no follow-up treatment for the duration of his military service, and no complaints of low back pain at the time of his discharge from active duty in 1967. According to the examination report, the Veteran also reported that for the next 15 or 20 years after his discharge, he was free from any low back pain until he sustained a few post-service, work-related chronic low back strains, when lifting heavy objects as a factory worker. The examiner diagnosed the Veteran with chronic lower back pain and degenerative changes of the lumbosacral spine. He opined that the Veteran's low back disability was not likely related to his one-time lower back pain in service. His rationale was that there were no complaints or follow-up for back pain after the Veteran was released from active duty, and the Veteran had a history of work-related strains of the lower back, which his current lower back condition is related to. However, the Board finds that the examination report reflects no consideration of the Veteran's reports that he has experienced continuous low back pain since the time of his initial in-service injury in 1964, which continued after his discharge in 1967, or his reports of continuous treatment for low back pain, with pain medications and other therapeutic tools, following his discharge. Nor does it reflect any consideration of the reports of the Veteran's wife that she has witnessed the Veteran experiencing low back pain, which he attributed to an in-service injury, since she first met him, sometime between 1974 and 1975. See September 2011 Video Hearing transcript. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet.App. 303 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet.App. 295 (2008). As the examiner did not consider all of the Veteran's history or complaints, his negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet.App. 109, 114 (1996); Stanton v. Brown, 5 Vet.App. 563, 569 (1993). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's lumbar spine disability is necessary. See 38 C.F.R. § 4.2 (2013). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to ascertain the nature and etiology of his current lumbar spine disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lumbar spine disability is etiologically related, in whole or in part, to the Veteran's active military service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's lay statements regarding the onset of symptoms and continuity of such symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). In this regard, the Veteran has reported experiencing low back pain since his initial injury in service, and continuously thereafter. The examiner is advised that the Veteran is competent (and credible for purposes of this examination) to report symptoms and injuries, as well as diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, 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). The report must be typed. 2. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, a supplemental statement of the case should be issued. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ F. JUDGE FLOWERS 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).