Citation Nr: 1417444 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 11-10 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from May 1968 to December 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in part, denied the Veteran's claim of entitlement to service connection for a lumbar spine disability. In September 2013, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that he has a current lumbar spine disability due to his service duties. During his September 2013 hearing, he indicated that as a tank mechanic he crawled under tanks and carried heavy parts causing his back injury. He also recounted two specific instances in which he injured his back. The first was when he was in Vietnam, he was required to make a repair of a tank that had become disabled, and in doing so he had to drag an "angled tank bar" that weighed 750 pounds for about 25 yards. His "back went out," and he was put on light duty, and given pain pills and muscle relaxers. The Veteran stated that his back was constantly sore thereafter. The second injury involved his back going out while he was stationed at Camp Lejeune. The injury was in the same area of his back that he had injured in Vietnam. The Veteran testified that he sought private treatment for his back after service, namely, from Dr. Shaffna from 1978 to 1989, and then from Dr. Pearson from 1989 to 2000. The Veteran stated that he tried to obtain those records but was advised that they had been destroyed. Since 2007/2008, he has been treated at the North Central Clinic in San Antonio. At his September 2013 hearing, the Veteran testified that he was scheduled for upcoming back surgery for October 8th, 2013. These records have not been associated with the claims folder. Additionally, on remand, any ongoing medical records should also be obtained. 38 C.F.R. § 3.159(c) (2) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Review of the Veteran's service treatment records confirm that he complained of back pain in October 1969 and March 1971. He was afforded two examinations in connection with his claim. In August 2008, a VA examiner indicated that he could not address the etiology of the Veteran's spine disability without resorting to mere speculation due to the lack of records for 37 years, and the fact that the two service record entries were insufficient for diagnostic purposes. Subsequently, the Veteran was provided another examination in January 2009. The VA examiner opined that the Veteran's current degenerative disc disease was less likely related to his 1969 service complaints. Noting that the in-service condition could have resolved after the acute injury, the examiner found no evidence demonstrating a chronic condition, and that the current condition was due to aging and genetic predisposition to disc herniation. He added that repetitive loading and injury to the lower back contributed to the age-related degeneration and that the in-service lumbar strain was less likely to be a factor to the degenerative change as it happened 38 years ago. The Board finds that January 2009 VA examination report is inadequate. While the examiner noted the one entry during service related to back complaints, the basis for the opinion is the lack of documented notations of back problems following service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, the Veteran indicated that he had back trouble since service and sought treatment on multiple occasions following service discharge. In this regard, the Board notes that the Veteran is competent and credible to report his symptoms, as well as the fact that he sought treatment shortly following service discharge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that the Veteran testified that he was unable to obtain these records due to the passage of time. Furthermore, the examiner only noted the Veteran's complaints in 1969 but did not address his March 1971 complaints of stiff muscles. Therefore, on remand, the Veteran must be afforded another examination to determine the nature and etiology of any current lumbar spine disability, taking into account his assertions as to continuity of symptoms since service and seeking treatment after service, and the 1971 service treatment record. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain his October 2013 back surgery records. All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file. If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A (b) (2) (West 2002); 38 C.F.R. § 3.159(e) (1) (2013). 2. Obtain all outstanding VA treatment records, to include those from the North Central Clinic. All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file. If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file. 3. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current lumbar spine disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should determine whether it is at least as likely as not (a 50 percent probability or more) that any current lumbar spine disability had its onset in service, or is otherwise related to the Veteran's military service, to include the two service entries noted herein. The examiner must also consider the Veteran's assertions of continuity of symptoms following service and his treatment following service discharge. As explained above, the examiner is cautioned from focusing his/her opinion on the lack of documented evidence of treatment following service. The rationale for all opinions expressed must also be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should state such and provide rationale for that non- opinion. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity 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. 2013). _________________________________________________ MICHAEL A. PAPPAS 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).