Citation Nr: 1339170 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 13-18 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1969 to April 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in part, denied the Veteran's claim of entitlement to service connection for lumbar spine stenosis, scoliosis, herniated disc, and mild to moderate osteoarthritic changes. Due to the various lumbar spine diagnoses of record, the Board has recharacterized the issue as reflected on the first page. See Clemons v. Shinseki, 23 Vet App 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file. 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 Board finds that additional development is warranted in this case before a decision may be rendered. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran essentially contends that his current lumbar spine disability is due to constantly bending to walk through doorways of ships and lifting heavy equipment during service [photos of which he submitted with his claim]. He asserts that he was not treated during service but had problems with his lower spine most of his adult life, and that his inguinal hernias corroborate his contention of doing strenuous work during service. He also states that he was told by his primary care physician that his degenerative process occurred over a long time. VA afforded the Veteran an examination in May 2012. Upon review of the claims folder, and interview and evaluation of the Veteran, the VA examiner opined that that it was less likely than not that the current lumbar spine disabilities were incurred in or caused by service. She reasoned that the Veteran's spine condition was linked to scoliosis and degenerative changes causing lumbar stenosis, and that online literature indicated that scoliosis was caused by a rapid growth spur or unknown etiology. As the examiner was unable to find evidence of scoliosis in the service treatment records, she was unable to determine the cause of that particular disability. Additionally, she cited to the nearly 20 year gap from service without a noted back injury until lumbar spine surgery for reaching the conclusion that it was not likely that there was a relationship between service and current lumbar spine disability. The Board notes that the claims folder shows that the Veteran had surgery in October 2012. The Board finds that the VA examination report is inadequate. The basis for the examiner's opinion is the lack of documented notations of lumbar spine problems for 20 years. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally although the examiner outlined the Veteran's contentions that he worked with heavy equipment in service, she did not address them in her opinion. In this regard, the Board notes that the Veteran is competent to report that he worked with heavy equipment, and that he had lumbar spine problems ever since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Also, review of the service treatment records shows that the Veteran was treated on two occasions for hernias, and he is service-connected for left inguinal hernia scar. Therefore, on remand, the Veteran must be afforded another examination to determine the nature and etiology of any current lumbar spine disability, taking into account his assertions as to service incurrence and continuity of symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to ascertain the nature and etiology of any 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 state whether it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disability is related to service, to include the Veteran's contentions of having to bend to walk through doorways, working with heavy equipment, and having problems with his spine ever since service. 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). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. 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 explain why 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. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ BETHANY L. BUCK 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).