Citation Nr: 1343281 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-31 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the low back. 2. Entitlement to service connection for radiculopathy of the bilateral lower extremity, as secondary to DDD of the low back. 3. Entitlement to service connection for cervical disc disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to March 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. In March 2012, the Board remanded the Veteran's claim in order to afford him a requested Board hearing. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2012. A transcript of that hearing is of record. 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 on his part. REMAND The Veteran contends that his claimed low back disability, with associated radiculopathy, and cervical spine disability stemmed from an in-service injury when he slipped and fell from a ladder, resulting in hyperextension of his back. A review of the Veteran's service treatment records (STRs) reveals multiple incidents of reported back injuries. In March 1984, he was noted to have fallen six feet, resulting in hyperextension of his back. He had tenderness over the L1-L2 area. A May 1984 clinical report noted that he complained of back pain after slipping in the shower. The assessment was a muscle strain. A February 1985 clinical report noted his complaint of having injured his back the day before. Additional STRs reveal additional complaints of back pain. During his June 2012 Board hearing, the Veteran testified that he had had ongoing low back and neck pain since the time of his initial in-service injury. He reported that following service he self-medicated with alcohol and drugs for several years before initially seeking medical treatment. The Veteran was afforded a VA examination to determine the nature and etiology of his current spine related disabilities in May 2011. The examiner diagnosed lumbar disc disease from L5-S1. The examiner gave the opinion that the Veteran's lumbar disc disease was not related to the claimed event that occurred during his service. The examiner noted the Veteran's incidents of reported back injuries, but also noted that there was no evidence of post-service treatment for back conditions until 25 years after his separation from service. The examiner also noted that a diagnosis of lumbar disc disease was not made during service, and that he had multiple risk factors for developing disc disease. In providing the foregoing opinion, the VA examiner did not appear to fully consider the Veteran's reports of experiencing ongoing back pain since his separation from service, and that he self-medicated his pain. Rather, the examiner largely based his opinion on a lack of evidence of low back treatment in the record. As such, the opinion is deemed inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on an absence of medical records to provide a negative opinion). With respect to the Veteran's claimed cervical spine disability, the examiner assessed multi-level cervical disc disease. The examiner did not, however, provide a clear opinion with respect to the etiology of the Veteran's cervical disc disease. For the foregoing reasons, remand is required in order to afford the Veteran a new VA spine examination to obtain an adequate opinion regarding the nature and etiology of all currently diagnosed cervical spine and low back disabilities. See 38 C.F.R. § 4.2 (2013). Finally, the Veteran testified during his June 2012 Board hearing that he was receiving ongoing VA treatment for his claimed disabilities. He specifically noted that he was scheduled to having neck injections to treat neck pain in August 2012. VA treatment records dated since June 2011 have not been associated with the claims file. Accordingly, remand is also required in order to obtain these identified, VA treatment records. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records, dated since June 2011, from the VA Healthcare System in Bay Pines, Florida. All reasonable attempts should be made to obtain these records. If requested records cannot be obtained, the Veteran must be notified of the attempts made and why further attempts would be futile. He must also be allowed the opportunity to provide such records, and be notified of any further actions that will be taken with regard to his claim, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Thereafter, schedule the Veteran for a VA orthopedic and neurologic examination of his cervical and lumbar spine. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. The examiner should diagnose and describe all cervical spine and low back disabilities, to include degenerative disc disease, and any associated radiculopathy into the lower extremities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine and/or low back disability, including any associated lower extremity radiculopathy, had its clinical onset during the Veteran's active service or is related to any in-service event, disease, or injury. In providing the foregoing opinion, the examiner should address all complaints and findings noted in the Veteran's service treatment records, to include all noted back injuries, as well as the Veteran's complaints of experiencing back and neck symptoms since service. The examiner must provide a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Then, readjudicate the service connection issues on appeal. If the full benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ James L. March 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. See 38 C.F.R. § 20.1100(b) (2013).