Citation Nr: 1610635 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 09-32 173A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen the Veteran's previously denied claim of entitlement to service connection for a lumbar spine disability. In November 2010 the Veteran testified before a Decision Review Officer (DRO). In August 2013 the Veteran testified at a Board hearing, before the undersigned Veterans Law Judge (VLJ). Transcripts of these hearings have been associated with the claims file. In a March 2014 decision, the Board determined that new and material evidence sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a lumbar spine disability had been received. The Board reopened the Veteran's claim and remanded the issue for additional development. The file has now been returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In July 2014, the Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to the VA, in favor of Nebraska Orthopaedic and Sport Medicine. To date, it does not appear that the AOJ has requested the Veteran's private treatment records from this provider. On remand, the AOJ should obtain an updated authorization form from the Veteran and obtain and associate with his claims file such records. In June 2014, the AOJ associated with the claims file the Veteran's VA treatment records from the VA Medical Center (VAMC) in Topeka, Kansas, dated until April 2014, and from the VAMC in Omaha, Nebraska, dated until July 2012. On remand, the AOJ should obtain and associate with the claims file the Veteran's updated VA treatment records. Resultant to the Board's March 2014 remand directives, the AOJ afforded the Veteran a June 2014 VA examination to determine the etiology of his lumbar spine disability. The examiner provided a negative etiological opinion and reasoned that there was no credible medical evidence of record to support a back injury during service. The examiner provided recitation of the Veteran's August 1976 in-service complaint of low back pain coincident to a diagnosis of sore throat and his reported in-service right knee injury, an injury the Veteran described as one impacting his low back. The examiner noted the Veteran's reports of in-service low back pain while running after the right knee injury, as well as his reports of post-service low back symptoms and treatment. The VA examiner, in June 2014, based her negative etiological opinion on the fact that the Veteran's service treatment records were silent for evidence of a low back injury. While she recorded the Veteran's lay statements, it does appear that she considered such and the opinion is thus inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the appellant's report of in-service injury but relied on the service treatment records to provide a negative opinion). On remand, the AOJ should obtain an adequate addendum etiological opinion as to the Veteran's lumbar spine disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that submit an updated VA Form 21-4142, Authorization and Consent to Release Information to the VA, in favor of Nebraska Orthopaedic and Sport Medicine, as his July 2014 authorization is outdated. Advise the Veteran that he may submit his private treatment records if he so chooses. Attempt to obtain and associate with the claims file any identified private treatment records. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Obtain and associate with the claims file the Veteran's VA treatment records maintained by the VAMC in Topeka, Kansas, dated after April 2014, and the VMAC in Omaha, Nebraska, dated after July 2012. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 3. Then, forward the Veteran's claims file to the VA examiner who conducted the June 2014 VA examination, or a suitable substitute. The examiner should review any new evidence added to the claims file and respond to the Board's inquires. If any examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's lumbar spine disability was incurred in service, or are otherwise related to service, specifically considering his service treatment records demonstrating a right knee injury following a jumping accident, as well as his lay statements regarding his claimed in-service and post-service lumbar spine symptoms. (b) The examiner should opine as to whether it is at least as likely as not that the Veteran's lumbar spine disability, diagnosed to include degenerative joint disease, was manifest to a compensable degree within one year of separation from service in August 1980, thus, by August 1981. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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 2015). _________________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).