Citation Nr: 1514142 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 13-03 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Jaya Shurtliff, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. By a decision in June 2014, the Board found that new and material evidence had been received to reopen the claim of entitlement to service connection for low back disability, and remanded the reopened claim for additional development. The matter has returned to the Board for appellate consideration. In June 2014, the Board also found that new and material evidence had been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression, and remanded the reopened claim for additional development. An August 2014 rating decision granted entitlement to service connection for depressive disorder, also claimed as an acquired psychiatric disorder. This action represents a total grant of the benefit sought with respect to this issue and the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In January 2014, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The issue of entitlement to a total disability rating for compensation purposes based upon individual unemployability (TDIU) has been raised by the record in a September 2014 statement and VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated in September 2014. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that the Veteran's case must be remanded for corrective action. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2014, the Board remanded the issue on appeal for additional development, to include a request for Social Security Administration (SSA) records, updated VA medical treatment records, and a new VA examination and opinion. The SSA records and VA medical treatment records were requested and associated with the claims folder. See Stegall, id. Next, in the June 2014 remand, the Board determined that a new VA examination and opinion was required to determine the nature and etiology of the Veteran's claimed low back disability. In the remand, the Board acknowledged that the Veteran was provided a VA examination in September 2010. The September 2010 VA examiner explained that an etiological opinion could not be provided without resort to mere speculation. The examiner referenced the records reviewed in the case, to include the separation report of medical history wherein the Veteran reported recurrent back pain. However, the examiner noted that the VA opinion was requested to determine whether the back disability was due to the Veteran's "claimed fall" in service and did not address whether a back disability was otherwise related to any other aspect of service. The examiner continued to reference records from the claims folder, but did not elaborate or offer an explanation as to why an etiological opinion could not be provided. See Jones v. Shinseki, 23 Vet. App. 383, 389 (2010). As a result, the Board remanded the issue to obtain a new VA examination and opinion. An examiner was asked to opine whether "it is at least as likely as not" that the Veteran's low back disability was caused by or otherwise related to service. The examiner was asked to comment on the Veteran's report of back pain since a 1979 in-service fall, the August 1979 service treatment record documenting the fall, a February 1980 service treatment record documenting a complaint of back pain (the Board now notes that the pain was referred to in connection with treatment for cold symptoms), and the November 1980 separation report of medical history wherein the Veteran reported recurrent back pain. The Veteran was provided a VA examination in July 2014. The examiner opined that the Veteran's low back disability was "less likely than not" incurred in or caused by the in-service injury, event, or illness. In the rationale, the examiner explained that there was no documented evidence in the Veteran's service treatment records of a back injury or evaluation of back pain or a diagnosis of a back condition while on active duty. It was further stated that the only reference to back pain was in the separation/discharge physical, but the endorsement was a self-report and there was no clinical documentation of a back injury in the service treatment records. The Board finds that the July 2014 VA examiner's opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner did not provide a complete rationale addressing the pertinent facts of the Veteran's case. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this respect, the examiner did not address the Veteran's statements that he experienced chronic back pain following his fall through a hatch and dismissed the Veteran's report of back pain on separation from active service because there was no clinical documentation of a back injury during service. The absence of a clinical diagnosis or treatment during active service is not considered adequate rationale, on its own, for determining that a currently diagnosed disability is not service related. Furthermore, the examiner did not address the Veteran's reports of chronic pain since his fall as documented in post-service treatment records dated shortly after separation from active service. In a July 1981 VA treatment record, the Veteran reported experiencing low back pain since a fall in active service. A July 1981 radiographic report indicated "straightening" of the lumbar spine, but that the disc spaces were well preserved. In September 1981, the Veteran reported chronic back pain since a fall during active service and a February 1982 VA medical treatment record shows that the Veteran requested different medication for his back pain. Due to an inadequate rationale, the issue of entitlement to service connection for a low back disability must be remanded to obtain an adequate VA medical opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the claims folder to the VA examiner who provided the July 2014 VA examination and opinion; or, if the examiner is unavailable, to another suitably qualified VA examiner. The claims folder must be made available to and reviewed by the examiner. The examiner must note whether the claims folder was reviewed. If the examiner determines that additional clinical examination of the Veteran is necessary to render the opinion requested below, such examination should be scheduled. The examiner is asked to address the following: Express an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any low back disability manifested in active service or is otherwise related to active service, to include a fall through a hatch. The examiner is directed to presume for the purposes of this opinion that the Veteran is credible regarding his report of experiencing back pain since he fell through a hatch during active service. In addition, the examiner is asked to comment on the following in providing the above opinion: *The August 1979 service treatment record documenting the Veteran's fall through a hatch. *The November 1980 separation report of medical history wherein the Veteran reported recurrent back pain and the examining physician noted occasional back ache in the morning. *The buddy statements addressing the Veteran's fall through a hatch. *The Veteran's statements regarding chronic back pain since his fall. *The post-service VA medical treatment records dated in July 1981 and September 1981wherein the Veteran reported chronic back pain since a fall during active service. *The significance, if any, of the July 1981 radiographic report finding of "straightening" of the lumbar spine. *The February 1982 VA treatment record noting that the Veteran was on medication for his back pain. The examiner must provide a complete rationale upon which his/her opinions are based and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his/her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 2. After completing the above, and conducting any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, return the case to the Board for appellate review. 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).