Citation Nr: 1338045 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-33 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for degenerative disc disease, lumbosacral spine (claimed as lower back, thoracic lumbar). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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's service treatment records (STRs) show that his entrance examination and report of medical history in 1966 both indicated no spine defects. In November 1969, he was diagnosed with mild scoliosis, a transitional vertebra at the lumbosacral junction, and endplate disease in the dorsolumbar junction. At that time, an impression of probable chronic lumbosacral strain, from an old condition that existed prior to service or a lumbar anomaly, was noted. The Veteran's separation examination and report of medical history indicated no spine defects, but included a notation regarding chronic low back pain in 1970 that was attributed to heavy lifting, and treated with medications and physical therapy exercises. The notation further indicated the Veteran had a good response to the treatment, and that there were no complications or sequela. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "Clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). A private treatment record from January 2010 indicated diagnoses of right lateral rotatory scoliosis in the thoracic spine and left rotatory scoliosis in the lumbar spine. The Veteran was afforded a VA examination in November 2010. The examiner diagnosed the Veteran with anterior spondylolisthesis of L5 over S1 and degenerative disc disease. The examiner first noted that he could not resolve the question of whether the Veteran's current back disability was aggravated by military service without resorting to mere speculation. He wrote that the Veteran "probably" had a preexisting back condition as indicated by the 1969 X-ray results, and that the Veteran's first three years of service almost certainly aggravated his back problem. Later in the opinion, the examiner stated that it was "exceedingly unlikely" that the Veteran's back disability was aggravated by service. He also observed that the sacralization and transitional L5 vertebra documented in 1969 were consistent with a congenital cause, but provided no further explanation. In February 2012 the RO requested a new medical opinion, specifically addressing whether the Veteran's scoliosis was congenital in nature, whether it preexisted service, whether it was aggravated as a result of service, and whether any current back disability could have been incurred in service without regard to aggravation. In May 2012, the same examiner that conducted the November 2010 examination reexamined the Veteran and provided a new medical opinion. The examiner did not render an opinion as to direct service connection for the Veteran's current back disability. He found that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. He also stated that any current back disability "could have" been incurred in service without regard to aggravation. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the inconclusive nature of the examination reports and the inconsistencies contained therein, the Board concludes that the November 2010 and May 2012 VA medical opinions are inadequate for rating purposes, and that a remand is necessary for a new examination and opinion. Thus, all outstanding private treatment records relating to the Veteran's back disability should be obtained and made part of the record. Then the Veteran should be scheduled for a new VA examination for his back disability, with a different examiner from the November 2010 and May 2012 examination. Any accompanying opinion should be supported by a rationale. Accordingly, the case is REMANDED for the following actions: 1. After obtaining the necessary authorization from the Veteran, request copies of any outstanding treatment records from Applied Chiropractic, and any other private treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 2. When the above actions have been accomplished, to the extent possible, afford the Veteran an examination by an appropriate examiner, different from the November 2010 and May 2012 examiner, to identify any current back disabilities and determine their etiology. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Following examination of the Veteran and review of his pertinent medical history and lay statements, the examiner should provide an opinion on the following: a) Whether there is clear and unmistakable evidence that the Veteran had a preexisting back condition prior to service. b) If so, whether there is clear and unmistakable evidence that the Veteran's preexisting back condition was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). c) If there is not clear and unmistakable evidence that the Veteran had a preexisting back condition, opine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current back disability had its onset in service or is otherwise related to service. Any opinion offered should be accompanied by supporting rationale. 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. 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 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. 2013). _________________________________________________ A. C. MACKENZIE Acting 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).