Citation Nr: 1400584	
Decision Date: 01/08/14    Archive Date: 01/23/14

DOCKET NO.  09-46 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES
 
1.  Entitlement to an increased rating for a left ankle sprain.
 
2.  Entitlement to service connection for a low back disorder.  
 
 
REPRESENTATION
 
Appellant represented by:  Georgia Department of Veterans Services
 
 
WITNESS AT HEARING ON APPEAL
 
Appellant
 
 
ATTORNEY FOR THE BOARD
 
Matthew Schlickenmaier, Associate Counsel

INTRODUCTION
 
The Veteran served on active duty from October 1970 to August 1976.
 
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA).
 
The Veteran appeared and testified at a personal hearing in August 2012 before the undersigned Veterans Law Judge sitting in Atlanta, Georgia.  A transcript of the hearing is contained in the record.
 
The Board notes that, 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 an ankle x-ray report dated January 2011 that is pertinent to this appeal.  All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal.
 
The issue of entitlement to an increased rating for a left ankle sprain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
 
 
FINDING OF FACT
 
A chronic low back disorder was incurred during active military service.
 
 

CONCLUSION OF LAW
 
A low back disorder was incurred or aggravated inservice.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).
 

REASONS AND BASES FOR FINDING AND CONCLUSION
 
Duties to Notify and Assist 
 
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application.  In February 2007, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  The issues were readjudicated in September 2011.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  He was provided the opportunity to present pertinent evidence and testimony.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order, except as discussed in the remand.  
 
Legal Principles
 
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Alternatively, a nexus to service may be presumed where there is continuity of symptomatology pertaining to arthritis since service.  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 
 
A disability may also be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury, or (2) aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.
 
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
 
Analysis
 
Service treatment records reveal that at an August 1970 pre-induction examination the Veteran denied a history of back problems.  Physical examination revealed a normal spine.  

In a December 1974 service treatment record the Veteran was reported to complain of low back pain.  The clinical impression was mild low back strain.  There were no additional complaints, findings or diagnoses pertaining to a back disorder during the appellant's active duty service.  At the Veteran's July 1976 separation examination he denied a history of recurrent back pain, and physical examination revealed a normal spine.

The appellant was seen for a VA compensation examination in November 1976.  He did not report any pertinent complaints.  Physical examination revealed no evidence of a back disorder.  

In May 1990, the appellant was seen by a Dr. M.B. following a report of a one week history of low back pain.  Physical examination yielded a diagnosis of a strain.
 
In August 1990, the appellant was seen for physical therapy at the Institute for Comprehensive Rehabilitation and Recovery.  He reported a two year history of recurrent low back pain.  

In a May 1991 record Dr. M.B. recorded the appellant's report that he fell seven feet from a ladder and onto his back.

In April 2000, Dr. J.E.M. noted that the Veteran reported a three to four year history of migratory pain that sometimes involved the back.  It was noted that the appellant had a history of falling from a ladder and injuring his neck and back.  Physical examination yielded a diagnosis of fibromyalgia.
 
A March 2006 VA medical record noted an assessment of a herniated disc.  An October 2006 magnetic resonance imaging scan revealed a disc protrusion and minimal facet arthrosis at L5/S1. There was also evidence of a broad based posterior disc protrusion causing mild central canal and moderate left lateral recess stenosis with possible impingement of the descending left L5 nerve root; and mild left foraminal stenosis due to bulging disc.  Subsequent VA and private medical records show that the Veteran continues to experience a lower back disorder. 

In August 2007, Dr. M.B., noted that the appellant had been his patient since 1988.  He opined that the Veteran's inservice injury "certainly could have been the initial insult to his low back that started his degenerative process that now leads to his increasing pain and disability."

In October 2009, a VA doctor treating the Veteran for his low back disorder opined that the appellant's disorder was "more likely than not directly and causally related to the initial injury to his lumbar spine that occurred while serving in the military in 1974."  She noted that the Veteran had a documented low back injury in service; severe recurrent low back pain in 1988, which abated until 1997 when it then returned; MRIs indicating degenerative lumbar changes and lumbar disc protrusion; and increasingly severe symptoms after 2004.
 
At his September 2012 hearing, the Veteran claimed that he first injured his back in December 1974 while ski training in service, and that he has had problems with his back since he separated from active duty.  
  
Finally, in September 2012, Dr. R.G. opined that "based on the patient's history, provided medical records, radiographic imaging, and the expected natural progression of degenerative changes in the adult spine, there is little doubt that the injury dating back from 1974 was a major, if not the sole factor initiating the cascade of degenerative changes resulting in his subsequent required surgical intervention."  Dr. R.G. noted that he reviewed the Veteran's service treatment records and that they indicated that he suffered a lumbar strain in service. He reasoned that the documented history of the Veteran's back disorder "is clear and linear with regard to [the degenerative changes], not only with its onset of symptoms but in the linear progression of degenerative changes." 
 
In this case, the record shows that the Veteran was treated for a lumbar strain while on active duty.  While the Veteran did not thereafter receive any additional medical care for a back disorder inservice, and while there is some evidence of an intercurrent injury, two health care providers have offered well reasoned competent opinions that the appellant's current back disorder is related to service.  Given that there is no competent evidence to the contrary, the Board finds that service connection for a low back disorder is in order.  38 U.S.C.A. §§ 1110, 1131, 5107.
 
 

ORDER
 
Entitlement to service connection for a low back disorder is granted.
 
 
REMAND
 
At his September 2012 hearing, the Veteran stated that his left ankle sprain had worsened since a January 2011 VA examination and that "as time goes on, it tends to get worse."  If the veteran alleges worsening since the last examination, the claim must be remanded for a new examination.  Olson v. Principi, 3 Vet. App. 480, 482 (1992).  Because the Veteran alleged his left ankle sprain had worsened by September 2012, and has likely worsened since then, he should be provided with a new examination.  
 
Accordingly, the case is REMANDED for the following action:
 
1.   The AMC/RO must take appropriate action to contact the Veteran and secure any and all pertinent records concerning care provided since January 2011.  All attempts to secure this evidence must be documented in the claims file.  If the AMC/RO cannot locate such records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond.

2.  Thereafter, the Veteran must be afforded a VA orthopedic examination to assess the current nature and extent of his left ankle sprain.  The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA.  The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. 

In accordance with the latest worksheet for rating ankle disorders, the examiner must provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his left ankle disability.  The impact of the left ankle disability on the appellant's ability to work must be addressed.  A complete rationale for any opinion expressed must be provided.

3.  The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2013).  In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

4.  After the development requested has been completed, the AMC/RO should review any report to ensure that it is in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that the examiner documented his or her consideration of Virtual VA.  If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 

5. Then, after conducting any indicated additional development, the AMC/RO must readjudicate the issue.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
 
The appellant 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).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs