Citation Nr: 1340408 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-25 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for degenerative arthritis of the cervical and lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Shari Gordon, Associate Counsel INTRODUCTION The Veteran had active military service from March 1969 to January 1982. He is in receipt of several awards, to include the Combat Infantryman Badge and Vietnam Cross of Gallantry with Palm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefit sought on appeal. Although this benefit was previously denied by the RO as a "low back injury" in an April 1985 rating decision, the RO has treated this issue as a new claim for degenerative arthritis of the cervical and lumbar spine and the Board will leave it as such. 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 The Board notes that the Veteran's DD-214, his service separation form, verifies his status as a combat Veteran, specifically his receipt of the Combat Infantryman Badge. 38 U.S.C.A. § 1154(b) (West 2002). The Veteran's DD-214 Form also confirms that he was stationed in the Republic of Vietnam during his active military service. Based on his combat status, the Board finds that the Veteran's lay statements are competent and credible to describe the circumstances, conditions and hardships of his active military service. Thus, these lay statements have probative value to warrant conceding he sustained the type of traumas alleged during his active military service. 38 U.S.C.A. §§ 1154(a), (b); 38 C.F.R. § 3.304(d). The Board notes that the Veteran was afforded a November 2011 QTC spine examination. The Veteran asserted that he had suffered with low back pain since 1970 related to carrying a rucksack and injuring himself in a helicopter crash during service. The Veteran was diagnosed with degenerative arthritis of the cervical and lumbar spine. The VA examiner further stated that the Veteran's contentions were not substantiated by his service treatment records, noting that there were no reports of any injuries nor treatment to the Veteran's low back in service and therefore opined that it was less likely than not that the Veteran's low back disability was related to service. However, for such chronic diseases as specifically listed in 38 C.F.R. 3.309(a), to include arthritis, service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). Therefore, the Board finds that the November 2011 QTC examiner's opinion that because the Veteran's separation examination revealed no complaints of chronic back pain, that the Veteran's current low back disability, to include degenerative arthritis of the cervical and lumbar spine, was less likely than not related to his service is inadequate. The examiner did not consider the Veteran's competent and credible account of in-service back pain, or back pain since that time. When 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, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion from the same VA examiner who conducted the November 2011 QTC examination, or to a qualified medical professional if the examiner is unavailable. The claims folder, including a copy of this remand, must be made available to the examiner. If the examiner determines that an examination is necessary, one should be scheduled. The entire claims file and all pertinent records must be reviewed by the examiner. After reviewing the record, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater), that any current degenerative arthritis of the cervical and lumbar spine is etiologically related to the Veteran's active military service, to include any in-service low back injury from a helicopter crash or carrying an 80 pound rucksack. For purposes of this examination/opinion request, the examiner is directed to assume that the Veteran's lay statements are competent and credible to describe the circumstances, conditions and hardships of his active military service. The absence of low back injury findings on separation from service alone should not preclude a positive opinion. The examiner must also consider the Veteran's statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). A complete rationale should be provided for all opinions. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should 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. Thereafter, readjudicate the Veteran's claim with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an appropriate period of time within which to respond. 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. 2012). _________________________________________________ J. A. MARKEY 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).