Citation Nr: 1337987 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-21 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for intervertebral disc syndrome with degenerative changes (claimed as back injury). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran has served in the Oklahoma National Guard beginning in February 2000, with periods of active duty service from March 2000 to July 2000, January 2004 to August 2004, and September 2005 to October 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for intervertebral disc syndrome with degenerative changes. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence. 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 having carefully considered the matter, the Board believes the Veteran's claim must be remanded for further procedural development. Upon enlistment in the Oklahoma National Guard in February 2000, the Veteran noted that he had pulled his back approximately three months prior while working. No issue related to his back was noted in the enlistment examination. While deployed on active duty in Afghanistan, the Veteran allegedly injured his back in approximately May 2004 when his Humvee hit a pot hole and he was slammed into his turret. On his post-deployment questionnaires both after his deployment in Afghanistan and his deployment for Hurricane Katrina relief aid, the Veteran noted back pain during deployment. In December 2006, while not on active duty, the Veteran was in an automobile accident, which eventually necessitated spinal surgery and the fusion of his L5-S1 vertebrae in October 2007. While on active duty training in September 2009, the Veteran alleges that a missile night sight fell on his lower back while he was loading a Humvee, reinjuring his lower back. In September 2009 VA treatment records, the Veteran mentions that he believed his lower back injury resulted from a parachute jump while in service. The Veteran attended an October 2009 VA examination to determine the nature and etiology of his lower back condition. The examiner diagnosed the Veteran with intervertebral disc syndrome with degenerative arthritis changes and the most likely involved peripheral nerve is lumbar spine with no complications. Per request, the examiner provided an addendum to the opinion essentially reiterating the diagnosis and discussing the findings of the Veteran's previous MRI. The examiner did not provide an opinion regarding the likelihood of the Veteran's currently diagnosed back condition being etiologically related to active duty service, or the likelihood that the Veteran's back condition was aggravated by active duty service or training. In short, the examination provides no conclusion as to whether the Veteran's currently diagnosed lower back condition is a result of, or was aggravated by active duty service. As a result, the Board finds that the October 2009 VA examination was inadequate, and a new examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (explaining that when VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the opinion must be adequately supported and explained). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide and identify any additional sources of treatment (both private and VA) for his lower back condition that may be helpful in adjudicating his claim. After securing any necessary release, the RO should obtain copies of any treatment records identified by the Veteran. 2. Ask the Veteran to provide details regarding his parachute jumps and alleged injury resulting from parachute jumps, as he mentioned in September 2009 VA treatment records. If possible, the Veteran should provide the approximate date of the injury(ies), where the injury(ies) occurred, and whether he received medical treatment for the injury(ies). 3. Attempt to obtain the Veteran's 201 personnel file and associate it with the claims file. Perform any and all follow-up as necessary in obtaining these records, and document negative results. If the Veteran's 201 personnel file is located and associated with the claims file, provide the Veteran and his representative a copy thereof pursuant to the Veteran's Freedom of Information Act (FOIA) request. 4. After the development directed in paragraphs 1, 2, and 3 has been completed to the extent possible, schedule the Veteran for a VA examination with an examiner of appropriate expertise to address the nature and etiology of his lower back condition. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. The examiner should address the following questions in his examination and resulting opinion: a) Did the Veteran have a chronic back disability prior to his December 2006 car accident? If so, is it at least as likely as not (i.e. a 50 percent probability or greater) that the chronic back disability was incurred during active duty service or is otherwise etiologically related to service? b) If the Veteran did not have a chronic back disability prior to his December 2006, the examiner should answer whether it is at least as likely as not that the July 2009 incident when a missile night sight fell on the Veteran's lower back during active duty training aggravated (that is, permanently worsened) the Veteran's lower back condition beyond natural progression. If so, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. 5. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an 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). _________________________________________________ DAVID L. WIGHT 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).