Citation Nr: 1634886 Decision Date: 09/06/16 Archive Date: 09/09/16 DOCKET NO. 12-21 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. He received the Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO denied entitlement to service connection for a back injury. The Veteran testified before the undersigned at a September 2013 videoconference hearing at the RO. A transcript of the hearing is associated with the file. In December 2014, the Board denied the claim of service connection for a lumbar spine disorder. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a December 2015 memorandum decision, the Court set aside the Board's December 2014 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has a current back disability which is related to back problems that he experienced in service associated with his in-service physical duties. Specifically, he claims that he injured his back on several occasions while lifting heavy artillery shells in Vietnam and that he was treated with medication by the field medic. His service treatment records include a single report of treatment for back pain in October 1968. He has reportedly continued to experience back pain ever since service, but there is some evidence to the contrary. For instance, his July 1969 separation examination was normal, the first post-service clinical evidence of back problems is not for many years following service, and he has provided information that is inconsistent with a continuity of back symptomatology since service. A VA examination was conducted in August 2010 and the Veteran was diagnosed as having a herniated disc at the L5-S1 level with left sided S1 nerve root impingement and chronic back pain. The physician who conducted the examination opined that "the chronic back pain noted by Dr. Schultz . . . [was] not caused by or a result of in-service back pain [in October 1968]." She reasoned that the Veteran's reported history of back pain since service was not substantiated by the outside private medical records, which reflect that he reported that his back pain started in June 2001. Also, his separation examination was negative for any back trouble. In its December 2015 memorandum decision, the Court explained that the August 2010 opinion and the Board's analysis of the evidence in its December 2014 decision were insufficient for various reasons. First, the question posed to the August 2010 examiner (i.e., whether the chronic back pain noted by Dr. Schultz was related to the Veteran's back pain in service in October 1968) and the opinion provided by the examiner did not "accurately describe the medical question posed by the evidence." Rather, the examiner should have addressed whether the physical duties that the Veteran performed in service "undermined the health of his back and resulted in the back disorder that he later developed." Second, it was unclear as to whether the examiner restricted her inquiry to only back pain, as opposed to the other back diagnoses provided during the claim period. Third, the examiner did not discuss whether the Veteran experienced a disease process in the back prior to a June 2001 incident when he felt a "pop" in his back while sitting in a chair. Fourth, neither the examiner nor the Board adequately acknowledged or discussed the fact that the Veteran experienced impaired function of his right lower extremity prior to service (a fact which was noted during his January 1967 entrance examination) and whether "the strength imbalance" in his lower extremities and his in-service duties "produced long-term health consequences." Lastly, the examiner's rationale consisted entirely of factual observations and she did not discuss why, "based on her medical expertise, she believe[d] those factual observations decisively answer[ed] the medical question at issue in this case." In light of the above deficiencies identified by the Court, the Board finds that a remand is necessary to afford the Veteran a new VA examination to obtain an opinion as to the etiology of his current back disability. The Court noted in its December 2015 decision that the Veteran had identified relevant treatment from "Dr. Scholls" during the September 2013 hearing. This treatment began approximately 20 to 25 years prior to the date of the hearing (i.e., sometime between 1988 and 1993). It appears that the reference to "Dr. Scholls" during the September 2013 hearing is likely a reference to Dr. Schultz, from whom some records have already been obtained. Nevertheless, upon remand, the Veteran should be asked to identify all relevant private treatment records and efforts should be undertaken to obtain all outstanding records of treatment from Dr. Schultz/"Dr. Scholls" and any other sufficiently identified private treatment provider. Updated VA treatment records should also be secured upon remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a back disability, to include the dates of any such treatment. The Veteran should also specifically be asked to complete authorizations for VA to obtain all records of his treatment for a back disability from Dr. Schultz/"Dr. Scholls" dated from August 1969 through the present, and from any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ should attempt to obtain any relevant private treatment records for which a sufficient release is obtained. All efforts to obtain these records must be documented in the file. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. All such notification must be documented in the file. 2. Obtain and associate with the file all outstanding records of the Veteran's treatment from the Iowa City VA Health Care System dated from May 2015 through the present; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current back disability. All indicated tests and studies shall be conducted. All relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that any back disability diagnosed since February 2010 had its clinical onset in service, had its onset in the year immediately following service (in the case of any currently diagnosed arthritis), is related to the Veteran's physical duties in service lifting heavy artillery shells, is related to his back symptoms experienced during service, or is otherwise the result of a disease or injury in service? (b) Did the Veteran experience a disease process in his back prior to June 2001 when he felt a "pop" in his back while sitting in a chair? If so, when did this disease process start? (c) Is it at least as likely as not (50 percent probability or more) that any back disability diagnosed since February 2010 is related to the combined impact of the Veteran's strength imbalance in his lower extremities which pre-existed service and continued therein (see a December 1966 letter from D.E. Stehr, M.D., a January 1967 "Report of Medical History" form completed for purposes of entrance into service, and the report of the Veteran's January 1967 entrance examination), and his physical duties in service? In formulating the above opinions, the examiner should specifically acknowledge and comment on any back disabilities diagnosed since February 2010, the Veteran's physical duties in service which involved lifting heavy artillery shells, his reported back problems in service, his documented treatment for back pain in service in October 1968, his lower extremity weakness which pre-existed service and continued therein, his report of having received post-service treatment for back problems beginning sometime between 1988 and 1993, and his reports of a continuity of back symptomatology in the years since service. (The absence of evidence of treatment for back problems for years after service cannot, standing alone, serve as the basis for a negative opinion. However, the examiner must also consider the inconsistent information concerning a continuity of back symptomatology in the years since service). The examiner must provide reasons for each opinion given. 4. If the benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2015). The Veteran 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 2014). _________________________________________________ THOMAS J. DANNAHER 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).