Citation Nr: 1607414 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 09-18 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and S. B. ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1986 to April 1989 and from February 1991 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran was afforded a videoconference hearing before a Veterans Law Judge (VLJ) in June 2010, and a transcript of the hearing is of record. In a June 2015 letter, the Veteran was notified that the VLJ who presided at his hearing was no longer employed by the Board, and that the case would be reassigned to a different VLJ. See 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. §§ 20.707, 19.3(b) (2015). He was given the option to attend a new hearing, with the letter stating that if he did not respond within thirty days, the Board would assume he had declined. To date, the Veteran has not requested a new hearing. Accordingly, the Board will proceed to address the Veteran's claim. This case was remanded by the Board for additional development in October 2010 and September 2014. The case has been returned to the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). In his May 2009 VA Form 9, the Veteran stated that his hypertension had not been properly addressed. This was the Veteran's first mention of hypertension, and it is unclear whether he intended to claim entitlement to service connection for hypertension. The record does not show that this issue has 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) (2015). REMAND Although further delay is regrettable, the Board is of the opinion that additional development is required before the Veteran's claim is decided. The Veteran claims entitlement to service connection for a back disability. The Board notes at the outset that the medical evidence of record includes past diagnoses of degenerative disc disease at L5-S1 and thoracolumbar strain. The Veteran's most recent VA examination was conducted in December 2014, following the Board's September 2014 remand. The examiner first noted that the Veteran was treated for low back pain three times during service and received nonspecific diagnoses each time. Specifically, in February 1987 he was diagnosed with mechanical back pain, in November 1987 with musculoskeletal back pain, and in July 1988 with low back pain. The examiner noted that none of these diagnoses was associated with a particular injury or trauma. The examiner then stated that these three instances of documented low back pain may not represent all of the Veteran's back pain in service, since a July 1988 treatment note shows he reported a long history of intermittent back pain. Because his enlistment examination did not note any back problems, the examiner concluded that the Veteran's back pain developed during service. The examiner next noted that the Veteran had several post-service back injuries. Specifically, she noted a June 1992 work-related injury, a February 1995 injury caused by lifting a garage door, a December 1996 injury caused by shoveling snow and pushing a car, and an October 1998 injury caused by working with a 500-pound patient in his capacity as a nurse. The examiner stated that the record established a gradual progression of intermittent to chronic back pain following repeated injuries. She then referenced medical literature showing that cumulative "wear and tear" of the spine structures and tissues with repetitive lifting and trauma may cause chronic back pain, and that severe pain may be the first sign of an extensive injury reaching nerves in a vertebral disc. The examiner stated that she favors this concept of "wear and tear," and reiterated that the Veteran's back pain clearly dated back to his time in service and that his duties as a medic may have contributed to its progression. The examiner found, however, that the Veteran had no back disability which could be identified by X-ray or clinical findings and linked to cumulative trauma that might have started during military service. On this basis, she concluded that it is less likely than not that any low back disability was related to the Veteran's military service. The examiner did note the Veteran's diagnosis of mild degenerative disc disease at L5-S1, shown on X-rays in December 1998 and April 2007. She opined, however, that because it is not uncommon to find mild degenerative changes beginning in the thirties, the degenerative changes appearing seven to sixteen years following the Veteran's separation from service are not linked with his military service and represent normal aging of the lumbar spine. She also stated that she did not believe the degenerative disc changes were the cause of the Veteran's chronic back pain, since the reported pain exists much more broadly than just near the L5 disc. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The December 2014 examiner approvingly cited medical literature showing that cumulative wear and tear of the spine structures and tissues with repetitive lifting and trauma may cause chronic back pain, and that severe pain may be the first sign of an extensive injury reaching nerves in a vertebral disc. She also stated that the Veteran's low back pain began in service, and that the record established a gradual progression from intermittent to chronic back pain following repeated injuries. The examiner opined that the Veteran's degenerative disc disease was not the cause of his chronic back pain, in part because the Veteran reported pain in more of his back than just in the area of the L5-S1. The examiner did not, however, provide an opinion as to whether degenerative disc disease is among the conditions which may be caused by the described "wear and tear" phenomenon. That is, she did not discuss whether the Veteran's history of lower back trauma beginning in service and continuing after service may, in combination, have caused or contributed to his current degenerative disc disease. As such, the Board finds that the December 2014 examination report is not adequate for adjudication purposes. In addition, the Board notes that the December 2014 examiner acknowledged the Veteran's June 1992 diagnosis of lumbosacral strain. In her report, however, the examiner stated that the Veteran had no back disability which can be identified by X-rays or clinical findings and linked to cumulative trauma that might have started during military service. The Board notes that in addition to the June 1992 diagnosis of lumbosacral strain noted by the examiner, the record includes notes from Columbia Park Medical Group showing diagnoses of lumbosacral strain in April 1996, October 1998, and April 2007. It is unclear from the December 2014 examiner's report whether she performed tests to determine if the Veteran had a lumbosacral strain at the time of the examination. The report's ambiguity on this issue might be interpreted as a finding that lumbosacral strain was not present at the time of examination, or that lumbosacral strain is not a condition which could be linked to cumulative trauma beginning during the Veteran's military service. However, the examiner did not explicitly make either finding. In addition, the examiner provided no rationale to explain why the Veteran's prior diagnosis of lumbosacral strain had not persisted, or why lumbosacral strain, if present, could not be linked to cumulative trauma beginning during the Veteran's service. As such, a remand is necessary to determine whether the Veteran does, in fact, presently have a lumbosacral strain which may be etiologically related to his military service. The Board notes that the Veteran submitted an April 2012 statement in which he asserted that during service, he was involved in heavy, awkward lifting of patients and equipment. This included a drill where the Veteran had to lift a soldier of above average size, who could not support his own weight, out of a tank from its floor to the hatch. At his June 2010 hearing, the Veteran testified that this drill was associated with his July 1988 treatment for low back pain. The Veteran's wife also submitted a statement in April 2012, in which she asserted that her husband had no back injury prior to enlistment in the Army, and that he began experiencing debilitating back pain and spasms while in service. The Board notes that examiners simply are not free to ignore lay statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, on remand the examiner must address the lay statements submitted by the Veteran and his spouse. Finally, the Board notes that the December 2014 examiner did not perform imaging studies of the Veteran's thoracolumbar spine. During his June 2010 hearing, the Veteran's representative specifically requested a new examination, to include a magnetic resonance imaging (MRI), in order to determine if residuals from an old injury were present. Therefore, if indicated, the new examination ordered by this remand should include an MRI. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, who has not performed an examination or proffered an opinion in this case, to determine the nature and etiology of all back disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. If indicated, imaging studies including an MRI should be performed. Following the examination of the Veteran and the review of the relevant records and lay statements, the examiner should confirm or rule out a diagnosis of lumbosacral strain. If the examiner determines that lumbosacral strain has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. In this regard, the examiner must consider and discuss the Veteran's diagnoses of lumbosacral strain in June 1992, April 1996, October 1998, and April 2007. If the examiner determines that any back disorders have been present for any portion of the period of the claim, the examiner must state an opinion with respect to each such disorder as to whether it is at least as likely as not (50 percent probability or greater) that the disorder originated in service or is otherwise etiologically related to the Veteran's military service. In providing his or her opinion, the examiner must consider and discuss the "wear and tear" phenomenon addressed by the December 2014 VA examiner. The examiner should include a discussion of any pertinent medical literature. Particularly, the examiner must address whether the "wear and tear" phenomenon may have caused or contributed to the Veteran's currently diagnosed degenerative disc disease or any other low back disability. The examiner must also consider and discuss the competent statements submitted by the Veteran and his spouse to the effect that the Veteran's back pain began in service. The examiner should consider these statements to be credible for purposes of any opinions provided. The examiner must provide a rationale for each proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin 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).