Citation Nr: 1601926 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 13-28 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1977 to April 1978 and from January 2003 to March 2004. This case comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board previously remanded this claim in June 2015 to provide the Veteran with a VA examination. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board has reviewed the record and finds that additional development is warranted. The Veteran claims service connection for a back disability. Specifically, in February 2012, he alleged that he experiences stiffness and pain in his back with pain radiating to his legs and toes. In a July 2012 Notice of Disagreement, he indicated that his back symptoms started during service in Iraq and have worsened since then. He contends that his back symptoms are related to service as a combat engineer, during which he unloaded and carried bomb shells off 5-ton trucks and laid concrete blocks for buildings. He stated that he received treatment for a back condition at a tent hospital in Iraq. The Veteran's DD Form 214 indicates that he served in Kuwait and Iraq from April 2003 to February 2004 in support of Operation Enduring Freedom. His DD 214 for this specific period states that he served in a designated danger pay area. At a VA posttraumatic stress disorder (PTSD) examination in December 2010 he reported exposure to hostile military activity and such exposure was found to be the cause of his PTSD in a February 2011 rating decision that granted service connection for PTSD. Consequently, the Board finds that the Veteran is entitled to the combat presumption. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Post-service treatment records showed complaints of lower back pain. April 2009, December 2011, and February 2015 lower back X-rays showed degenerative changes. Pursuant to the Board's June 2015 remand, Veteran was provided a VA back examination in August 2015. The examiner diagnosed the Veteran with spondylosis in the lower back. The examiner noted that the Veteran reported that his lower back pain began in service and that he received massage therapy treatment, but he could not remember a specific injury leading to back pain. The examiner opined that the Veteran's back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner stated that the Veteran could not remember any specific inciting event or treatment to his back while in service. The examiner's rationale conflicts with the Veteran's report during the examination that his back pain began in service and that he received massage therapy treatment. The examiner also failed to consider the Veteran's report of exposure to occupational hazards and to accept as fact that the Veteran engaged in heavy lifting during service as a combat engineer in Iraq, as required by the June 2015 remand. In a July 2012 Notice of Disagreement the Veteran claimed that his back symptoms are related to service as a combat engineer, during which he unloaded and carried bomb shells off 5-ton trucks and laid concrete blocks to build buildings. Therefore, based on inadequate rationale and lack of compliance with prior remand directives, an addendum to the August 2015 VA examination is necessary to determine the etiology of any current back disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, ongoing medical records should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. Those records should be obtained and associated with the claims folder, to include any outstanding treatment records from the Memphis VA Medical Center. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Next, return the claims file to the August 2015 VA examiner (or other qualified examiner, if unavailable) for preparation of an addendum opinion. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The VA examiner should respond to the following: Is it at least as likely as not that a current back disability was incurred in active service? In addressing this question, the examiner must consider the Veteran's reports of back treatment and exposure to occupational hazards during service in Iraq, as well as the fact that he engaged in heavy lifting during service as a combat engineer. Any opinions expressed by the VA examiner must be accompanied by a complete rationale. All lay and medical evidence should be considered. If the examiner cannot provide an opinion without resort to speculation, then the examiner should explain why this is the case and what, if any, additional evidence is necessary for an opinion. 3. Thereafter, the RO should readjudicate the claim on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an opportunity to respond before the case is returned to the Board. 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). 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). _________________________________________________ S. BUSH 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).