Citation Nr: 1601892 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 08-32 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). REMAND When the Board last reviewed the case in July 2014, it noted the Veteran's May 2010 testimony before the Board of a pre-service injury, as well as ongoing back problems since separation from service. In this regard, the Veteran's November 1966 induction physical examination includes the Veteran's report that one month prior to enlistment, he had a back injury at work for which he was treated by a private physician; there was no diagnosis noted at the time of enlistment. In January 1967, following two weeks of basic training, the Veteran complained of low back pain while marching. He stated that his back was injured in September of the previous year prior to enlistment; the Veteran was put on profile for one week. A subsequent January 1967 x-ray report of the lumbar spine revealed slight curvature of the lumbar spine with convexity directed to the left. Service treatment records document continuing complaints of low back pain in March, June, and September of 1967. Specifically, a March record notes a diagnosis of a muscle strain in the lumbar region. A June record notes the Veteran's report of low back pain for the past nine months. At the time, the Veteran was given a prescription for Darvon and an orthopedic consultation was recommended. A September record notes the Veteran's report of low back pain for the past year; x-rays were negative. The October 1968 separation examination is negative for any complaints or findings of a back disorder. The Veteran was afforded a VA examination in June 2007, during which the examiner indicated that the Veteran sustained a lumbar strain while in the military; however, he indicated "this type of condition typically resolves without residual and I would not expect ongoing problems as a result of this type of injury." The examiner concluded that the Veteran's current low back condition was not related to his military service. The Veteran underwent a VA examination in June 2011. The examiner diagnosed multilevel degenerative disc disease of the lumbar spine and spondylosis of the thoracic spine. While the examiner addressed whether the current diagnoses were related to the Veteran's active service, he failed to address whether such disorder pre-existed the Veteran's military service and, if so, whether that preexisting disorder was aggravated beyond its natural progression during his active duty. Thus, the case was remanded for an addendum opinion to address such question. In August 2014, the June 2011 VA examiner noted the Veteran's aforementioned service treatment records. The examiner stated that there was "no evidence" that the Veteran's current back disorders of thoracic lumbar spondylosis and lumbar degenerative disc disease were the result of his back complaints during service. In providing this opinion, the examiner noted that there was "no evidence" of any disc pathological findings, spondylosis, or degenerative disc disease on examination in service. The examiner concluded that there was "no evidence" of ongoing documentation of back pain within the first five to ten years after separation from service. The Board finds this opinion inadequate for adjudication purposes, as the examiner failed to address whether the Veteran's current back disorders pre-existed service and, if so, whether that preexisting disorder(s) was aggravated beyond its natural progression during his active duty. Therefore, another examination and opinion by a VA examiner other than the June 2011 examiner are necessary, in order to make a determination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there has not been substantial compliance with the July 2014 remand directives, the case must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded an appropriate VA examination to determine whether any currently or previously diagnosed low back disorders, to include thoracic lumbar spondylosis and lumbar degenerative disc disease, are related to his military service. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies must be accomplished. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed low back disorder, to include thoracic lumbar spondylosis and lumbar degenerative disc disease, is related to the Veteran's military service. The examiner must also provide an opinion as to whether any currently or previously diagnosed low back disorder preexisted the Veteran's military service. If a currently or previously diagnosed low back disorder is found to have preexisted military service, the examiner must state the specific evidence upon which the finding was made. If so, the examiner must then provide an opinion as to whether the Veteran's military service did not aggravate a preexisting low back disorder beyond the normal progression of the disease. If the examiner finds that the Veteran's military service did not aggravate a preexisting low back disorder beyond the normal progression of the disease, the examiner must state the specific evidence upon which the finding is based. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, 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 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. The medical report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2015).