Citation Nr: 1612079 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 12-25 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2006 to May 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of the matter was subsequently transferred to the RO in St. Petersburg, Florida. In October 2015, the Board remanded the case to afford the Veteran a videoconference hearing. Pursuant to the remand directives, the RO scheduled the Veteran for a videoconference hearing in February 2016. The Veteran was notified of the date, time, and location of the hearing by letters dated in December 2015 and January 2016. However, he failed to report for that proceeding, and he has not requested that the hearing being rescheduled or provided good cause. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. 20.704(d) (2015). This appeal was processed using the Virtual VA paperless claims processing system and Veterans Benefit Management System (VBMS). The VBMS file contains the October 2015 Board remand, a December 2015 notification letter, and a January 2016 notification letter. The remaining documents in the VMBS file are either duplicative of those in Virtual VA or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's service treatment records show that the he was treated for a muscle sprain after sustaining a back injury in October 2009. In January 2010, the Veteran was afforded a pre-discharge VA examination. The examiner determined that there was no pathology to render a diagnosis of a low back disorder. In support of his conclusion, the examiner noted that x-ray findings were within normal limits. The Veteran was later afforded a VA examination in May 2012. The examiner indicated that the Veteran did not have arthritis and opined that his current back disorder was less likely than not incurred in or caused by the claimed in-service injury. However, the examination report appears internally inconsistent. Specifically, in rendering the opinion, the examiner stated that the Veteran did not complain of back pain after the initial in-service injury and noted that the January 2010 pre-discharge examination and x-ray findings were normal. However, he also indicated in the report that the Veteran was diagnosed with lumbar intervertebral disc degeneration in September 2009 and noted that July 2010 MRI findings revealed a central/left paracentral protrusion at L5-S1 contacting the descending left S1 nerve root sleeve and a very subtle annular tear at L4-L5. The examiner did not address these findings in his rationale. The Board also notes that the May 2012 VA examiner based his opinion, in part, on the conclusion that the Veteran did not complain of back pain after the in-service injury. However, the January 2010 pre-discharge examination noted that the Veteran complained that he was unable to stand or sit for long periods due to his low back condition. Moreover, post-service VA medical records reflect that the Veteran complained of low back pain one month after his separation from service. See June 2010 VA primary care note. Based on the foregoing, the Board finds that remand is necessary to obtain an additional VA examination and medical opinion to determine the nature and etiology of the Veteran's current low back disorder. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a low back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any pertinent and outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current back disorder that manifested in service or that is otherwise causally or etiologically related thereto, including the October 2009 injury, the July 2010 MRI results, and the symptomatology noted during service. The examiner should also state whether the Veteran has arthritis. If so, he or she should indicate whether the arthritis manifested in service or within one year thereafter. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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).