Citation Nr: 1626989 Decision Date: 07/07/16 Archive Date: 07/14/16 DOCKET NO. 10-26 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for degenerative disc disease, thoracolumbar spine, claimed as back injury. 2. Entitlement to service connection for tailbone condition. 3. Entitlement to service connection for bilateral knee condition. 4. Entitlement to service connection for neck condition, claimed as neck injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to January 1969 and from January 2003 to March 2006. He also had additional service in Virginia Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The jurisdiction of the case lies with the RO in Roanoke, Virginia. The Veteran testified at an April 2016 Board hearing by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record reflects that the Veteran testified that he has been receiving disability benefits from the Social Security Administration (SSA) since January 2008. Therefore, a request for his Social Security records should be made before a decision on the merits of the Veteran's claims can be reached. 38 C.F.R. § 3.159(c); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran claims that his back, tailbone, neck and bilateral knee conditions are all a result of an injurious parachute jump episode that occurred in Germany in 1968. During his April 2016 Board hearing, he testified that while in the Army, he was assigned the 58th Airborne Infantry LRP (long-ranged reconnaissance patrol) and performed 35 night parachute jumps. He contends that during one of the night jumps, he had a bad landing, hit the deck with his knees in the up position and landed on his tailbone. He believes he hurt his neck and back at the same time. He stated he has experienced problems with his back ever since that incident. In support of his claims, the Veteran submitted a certificate of completion basic Airborne course at the 8th Infantry Division dated November 1966. Unfortunately, the Veteran's service treatment records for his first period of service from 1965 to 1969 are determined to be unavailable in this case. However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the Veteran submitted opinion letters from Dr. W.A. suggesting a link between the claimed disabilities and his service. In an April 2009 letter, Dr. A. wrote that the Veteran's neck symptoms have persisted for a very long period of time and as he served in the military and his neck symptomatology certainly could be a result of his military activities. In a September 2009 letter, Dr. A. stated that the Veteran had persistence of degenerative lumbar disk disease, cervical spine disease, coccydynia, and bilateral knee pain, which were all problems related to his service in the military as an airborne paratrooper. It was noted that the Veteran had several injuries in his military service and "now we are seeing the ultimate result of these injuries." Dr. A. opined that "[t]hese are a direct result of his military service." Although the opinion provided by Dr. A. was made by a physician, the opinion is nevertheless conclusory and without sufficient rationale to explain the basis for the conclusions. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the opinion). Under these circumstances, the Board finds that a VA examination is warranted to adequately decide the merits of the claims. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for back injury, a VA examination was conducted in March 2008 but the examiner provided no opinion regarding the etiology of the Veteran's thoracolumbar spine disability. Given the lack of an etiology opinion, the Board finds that that examination was not adequate. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain all updated VA treatment records from the VA Medical Center (VAMC) in Mountain Home, Tennessee, and any associated outpatient clinics dated from September 2015 to the present. All records and/or responses received should be associated with the claims file. 2. Contact the SSA and request the Veteran's Social Security disability records, including all medical records and decisional documents. All attempts to obtain the records should be documented in the file. If no records are found and additional requests for SSA records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, schedule the Veteran for a VA examination by an individual with the appropriate expertise in order to determine whether his thoracolumbar spine, tailbone, bilateral knee and/or neck condition is related to his periods of service. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. In light of the service and post service medical evidence of record, the lay statements of record, and any examination findings, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed thoracolumbar spine, tailbone, bilateral knee and/or neck had its onset during his active duty service, or it is otherwise related to his military service, specifically the numerous parachute jumps the Veteran was required to perform during service. In rendering the requested opinion and rationale, the examiner must address and attempt to reconcile any medical opinion of record, to include the April and September 2009 opinion letters from W.A. M.D., and note that the fact that there is no documentation of treatment in service is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. A complete rationale must be provided for any opinion stated. 4. The Veteran should be notified that it is his responsibility to report for an examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). 5. After completing the above development, readjudicate all claims on appeal, taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant 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). _________________________________________________ MICHAEL MARTIN 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).