Citation Nr: 1340458 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 04-18 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The appellant served with the Army Reserve, which included a period of active duty for training (ACDUTRA) from February 16, 1973 to August 12, 1973 and inactive duty training (INACDUTRA) on November 5, 1978. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, the RO denied the appellant's petition to reopen a claim of service connection for a back disability as new and material evidence had not been submitted. In an April 2004 statement (VA Form 21-4138) the appellant requested a hearing before a Decision Review Officer (DRO) at the RO. An informal hearing conference with a DRO was conducted in June 2004 in lieu of a formal hearing and a report of that conference has been associated with the appellant's claims folder. The appellant testified before the undersigned at a February 2008 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with her claims folder. In May 2008, the Board granted the appellant's petition to reopen the claim of service connection for a back disability and denied the underlying service connection claim. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court set aside the Board's May 2008 decision, in part, and remanded the case for readjudication in compliance with directives specified in a July 2009 Joint Motion filed by counsel for the appellant and VA. In January 2011, the Board remanded this matter for further development in compliance with the Joint Motion. In December 2012, the Board again denied the claim of service connection for a back disability. The appellant appealed the Board's denial to the Court. In April 2013, the Court set aside the Board's December 2012 decision and remanded the case for readjudication in compliance with directives specified in a March 2013 Joint Motion filed by counsel for the appellant and VA. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this, case, the appellant claims that she has a current back disability that is the result of an injury incurred during INACDUTRA with the Army Reserve on November 5, 1978. Service records confirm that on that date a dental sink fell on her upper back and shoulder area and that she sustained contusions to those areas. The appellant has also claimed that the sink struck her lower back as it slid down her back towards the floor. She has reportedly experienced a continuity of back symptomatology (i.e. upper back pain) ever since the in-service injury. A VA examination was conducted in November 2011 to assess the nature and etiology of the appellant's claimed back disability. X-rays of the lumbar spine were conducted and the appellant was diagnosed as having mild degenerative disc disease with facet arthritis and hyperlordosis. The physician who conducted the November 2011 examination opined that the diagnosed low back disability was not caused by or a result of the appellant's injury on November 5, 1978. The examiner reasoned that the appellant was injured in 1978 when a dental sink fell and hit her on the edge of her shoulder. She had been seen on multiple occasions for follow up treatment for neck pain and spasms of the paracervical muscles. She had also undergone physical therapy for upper back issues. X-rays revealed hyperlordosis and flattening of lordosis and there was also documentation of kyphosis. The examiner explained that these terms are often mixed up or used interchangeably. Kyphosis of the thoracic spine is often a rounded convexity common in women with aging and is often seen in osteoporosis. Lordosis of the lumbar spine is an accentuation of the normal curvature of the lumbar spine which develops in compensation for a protuberant abdomen or in compensation for kyphosis of the thoracic spine and flexion deformities of the hips. Neither of these findings is attributable to trauma. The examiner further reasoned that in 1981 the appellant was assessed by an orthopedic surgeon and that her range of motion, strength and sensation of her upper and lower extremities and spine were all normal. The strange "humping" of the lower spine that was documented in 1981 was not noted on any further examinations (including during the November 2011 examination). An MRI of the thoracic and lumbar spine was conducted in 2005 and it did not show any abnormalities attributable to trauma. Hence, the appellant's current mild disc degeneration and arthritis had recently occurred and was most likely secondary to the natural aging process. Also, there was no documentation that the appellant had sustained any injury to her lower back from the original trauma that she experienced to the upper back. As noted by the appellant's representative in her October 2013 statement, the November 2011 opinion is insufficient because the appellant's reports of a continuity of upper back symptomatology were not acknowledged or discussed in formulating the opinion. Also, the examiner's opinion was partially based on the absence of clinical evidence of treatment for low back problems following the November 1978 injury and the examiner did not discuss the Veteran's report that the injury also involved her low back. In this regard, a medical opinion is inadequate if it does not take into account the appellant's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, X-rays and other appropriate procedures should be conducted to determine whether the appellant has any current arthritis of the upper spine (i.e. thoracic spine). Hence, a remand is necessary in order to afford the appellant a new VA examination to assess the nature and etiology of any current back disability. 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); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report that 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). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A July 2012 treatment record from Yee-Wong Tong, M.D. indicates that the appellant was scheduled for follow up treatment for multiple medical problems, including back pain, in 2 weeks. There is no more recent treatment record from this physician in the claims file or among the appellant's paperless records in the Virtual VA system and Veteran's Benefits Management System (VBMS). When VA becomes aware of private treatment records it will specifically notify the appellant of the records and of the need to provide a release for VA to obtain the records. If the appellant does not provide the release, VA must ask the appellant to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps shall be taken upon remand in order to attempt to obtain any additional relevant treatment records from Dr. Tong. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to complete an authorization for VA to obtain all records of her treatment for a back disability from Dr. Tong dated from July 2012 through the present. All efforts to obtain these records must be documented in the claims file. If the appellant fails to furnish any necessary releases for private treatment records, she shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the appellant shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning her claim. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the appellant for a VA examination to determine the nature and etiology of any current upper and lower back disability. All indicated tests and studies shall be conducted. X-rays and any other appropriate testing shall be conducted to determine whether any arthritis of the upper back (thoracic spine) is present. The claims folder, including this remand and any relevant records contained in the Virtual VA and VBMS systems, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current upper and lower back disability identified (i.e. any upper and lower back disability diagnosed since November 2002), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current back disability had its clinical onset during the appellant's period of ACDUTRA from February 16, 1973 to August 12, 1973 or INACDUTRA on November 5, 1978, is related to her back injury on November 5, 1978, or is otherwise the result of a disease or injury incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. In formulating the above opinion, the examiner shall specifically acknowledge and comment on all upper and lower back disabilities diagnosed since November 2002 (including, but not limited to, thoracic hemangiomas, hyperlordosis, facet joint arthritis, and mild degenerative disc disease of the lumbar spine, and any arthritis of the thoracic spine), the appellant's back injury on November 5, 1978, her report of injuries to both her upper and lower back on that date, and her reports of a continuity of back symptomatology in the years since that injury. (The absence of evidence of treatment for back problems for periods of time in the years following service cannot, standing alone, serve as the basis for a negative opinion). The examiner must provide reasons for each opinion given. 3. If the benefit sought on appeal remains denied, the agency of original jurisdiction (AOJ) shall issue a supplemental statement of the case. After the appellant is given an opportunity to respond, the case shall be returned to the Board. No action is required of the appellant until she is notified by the AOJ; however, the appellant is advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655 (2013). The appellant 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). _________________________________________________ THOMAS J. DANNAHER 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).