Citation Nr: 1340470 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 06-23 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from January 1987 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Commonwealth of Puerto Rico. This matter was previously before the Board in September 2008, August 2010, and September 2011, wherein it was remanded for additional development. In September 2012, the Board denied service connection for a lumbar spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2013 Order, the Court granted a joint motion of the parties (the appellant and Secretary of VA) to vacate the Board's decision, and remanded the case to the Board for readjudication consistent with the content of the motion. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In order to comply with the Court's Order granting the joint motion of the parties, this claim is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In issuing the August 2013 Order granting the joint motion of the parties, the Court determined additional development was needed for this claim. The Board is bound by the findings contained in the joint motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case; the Board is, therefore, not free to do anything contrary to the Court's prior action with respect to the same claim). The Veteran contends that he is entitled to service connection for a lumbar spine disability, and he believes that his current lumbar spine problems stem from an initial injury incurred in service. The Veteran's service treatment records reflect that he reported low back pain on a few occasions. In May 1987, he was assessed with chronic low back pain. He was placed on a limited profile in April and May 1987 due to his low back pain. In August 1987, he reported low back pain since falling from a pole two months earlier. Later in August 1987, he reported a dull ache in the low back area. An assessment of mechanical back pain was indicated. In April 1989, he reported pain in the sacroiliac area. He denied injury or recent physical exertion. An assessment of sacroiliitis was indicated and he was again put on a limited profile. However, X-rays were normal, and nothing was noted on the Veteran's October 1991 discharge examination report. Following service, the Veteran was provided a VA examination in January 1995, at which time he reported that he fell down from a light pole during service, leading to injuries to the right arm, bilateral thigh, and also the back. He indicated that he experienced recurring back pain needing physical therapy and Motrin several times. An X-ray of the lumbar spine was normal. The diagnosis was paravertebral myositis. A May 2004 report from private physician Dr. V. notes lumbar disc herniation, while a May 2004 lumbar spine magnetic resonance imaging (MRI) study revealed central posterior herniation L5-S1 and L4-5. A January 2005 VA outpatient treatment report reflects active problems of low back pain and disc disease, L5-S1. A history of sacroiliitis in 1988 to 1989 was also noted. A medical report from Dr. V. dated in January 2008 reflects that the Veteran sustained a low back injury at work in April 2004. It was noted that the Veteran had been evaluated at her office a week after the injury. At that time, he was diagnosed with left lumbosacral radiculitis, lumbosacral back myositis, lumbosacral back muscles spasms, and cervicodorsal back myositis. X-rays revealed minimal osteoarthritis with mild discogenic disease at the L5-S1 level. He was seen for recurrence of back pain in February 2005 after he experienced a piercing sensation and tightness in the low back region associated with muscle spasm while driving a post office vehicle on light duty status. He was re-evaluated in March 2006 for additional complaints of back pain. She noted that a July 2006 MRI revealed discogenic disease at L4-L5/L5-S1 with left paracentral disc protrusion at L5-S1 and central disc protrusion at L4-l5 level. In August 2007, an MRI revealed small central disc protrusion at L4-L5 and circumferential annular bulge at L5-S1 and lumbar spondylosis. A diagnostic impression of lumbosacral back contusion, back strain, myositis, and disc herniations was indicated. Dr. V. indicated that a review of the history, physical examination, and diagnostic tests pointed to the conclusion that the Veteran's musculoskeletal condition was the product of the work accident he sustained in April 2004 and recurrent injury in February 2005. A November 2008 report from private physician Dr. O. reflects that the Veteran had a diagnosis of osteoarthritis and low back discogenic disease. The examiner noted that the Veteran reported that he initially injured his back while in service when he fell from a light post. Dr. O. noted that falling from that height and receiving such an impact on his column had caused direct damage and subsequent degeneration to his column, back problems, alignment problems, and disc herniation and bulging. He noted that, after considering the evidence of record, the Veteran's back problems are more likely than not a result of the accident he had while in service. On VA examination in March 2010, the examiner indicated that he reviewed the Veterans claims file and noted all the Veteran's complaints of low back pain in service. The Veteran reported that he had experienced low back pain since he fell from a pole in service. After eliciting a complete medical history and conducting a physical examination, to include X-rays, the examiner diagnosed herniated L4-5 and L5-S1 discs. The examiner opined that the Veteran's lumbar disc disease was less likely than not secondary to complaints and symptoms noted during service. The examiner noted that there were no complaints of back pain until 2005, after the Veteran sustained the workplace accident in 2004. On VA examination in January 2011, the examiner indicated that she reviewed the Veteran's claims file, including service treatment records and post service treatment records. After this review, she found it less like than not that the Veteran's lumbar spine disability was caused by or a result of the injury sustained during service. In so finding, the examiner noted that the claims file clearly documented a work-related injury in 2004. The degenerative disc disease and radiculopathy were clearly indicated in the reports surrounding the accident to be related to the 2004 injury. There was no mention of a pre-existing lumbar condition. In addition, the October 1991 in-service examination was negative for presence of a lumbar spine disability. The examiner saw no evidence that the Veteran's current lumbar condition was related to service. In May 2012, the Veteran's claims file was reviewed by the VA physician who had conducted the 2011 VA examination. The examiner noted that the Veteran's claim was discussed at length with a board-certified rehabilitative medicine physician. The Veteran's complaints of lumbar spine pain in service, as well as Dr. O.'s report of injury in service, were noted. The examiner also noted the report of VA examination in January 1995 and the report of workplace injury in April 2004. The examiner also referenced the Veteran's report that he required an inguinal hernia repair before he was accepted as a letter carrier. In denying this claim in September 2012, the Board determined the January 2011 and May 2012 VA examiners unfavorable opinions were of considerable probative value. However, the Court, in agreeing with the parties' joint motion, determined that additional evidence was needed to determine whether the in-service diagnosis of sacroiliitis may be considered arthritis, such that service connection might be warranted. Therefore, additional comment is required prior to the Board's adjudication of this issue. Further, on remand RO should also obtain and associate with the claims file any relevant VA and private treatment records dated since May 2006. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO shall obtain any additional and relevant VA and private treatment records dated from May 2006 to the present. 2. The RO shall return the Veteran's claims file to the May 2012 VA examiner for additional comment to specifically address whether the in-service diagnosis of sacroiliitis was an early manifestation or arthritis, or may be considered to be arthritis. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination - for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then obtain this necessary opinion from a reviewing physician who is equally qualified. If the reviewer states that an opinion requires re-examination, the Veteran should be reexamined by an examiner who is competent to provide a medical opinion regarding this issue. If re-examination is deemed necessary, all necessary diagnostic testing and evaluation should be performed. The examiner is also asked to review the relevant medical and other evidence in the claims file for the pertinent history, including a complete copy of this remand. A complete rationale should be provided for any opinion expressed. 3. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time shall be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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).