Citation Nr: 1637454 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 10-23 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from February 1970 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which declined to reopen the Veteran's previously denied claim of entitlement to service connection for a low back disability. The Veteran testified at a hearing in November 2010 before the undersigned. A copy of the transcript has been associated with the record. In May 2013, the Board reopened the Veteran's previously denied claim of entitlement to service connection for a low back disability. The claim was remanded additional development in May 2013 and July 2014. As discussed below, the Board finds there has not been substantial compliance with its prior remand directives, such that an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). The issue of entitlement to service connection for diverticulitis will be adjudicated in a separate decision, because another Veterans Law Judge held a hearing and took testimony on that issue. 38 C.F.R. § 20.707 (2016). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system and Virtual VA. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a current low back disorder which is related to service, or in the alternative related to his service-connected prostatitis. The Veteran was afforded a VA examination in July 2013. According to that examination report, a VA examiner opined that there was no compelling evidence that the Veteran's lordosis on entrance into service was either made worse by active service or caused any in-service back problems. He opined that there was not an on-going back condition per se due to active service. However, the examiner did not provide a rationale for his opinion and did not respond to the Board's requests considering the formidable "clear and unmistakable" evidentiary standard. In July 2014, the Board remanded the claim of entitlement to service connection for a low back disability in order to obtain an addendum opinion necessary to determine the etiology of the Veteran's current disorder. Following review of the records, the examiner opined that there is no evidence that the current back condition pre-existed service and that it is different from any pre-service quiescent condition. He further opined that the current back condition is not related to service, caused by it, or made worse by it. Regarding, service connection on a direct basis, the examiner did not provide any rationale for his opinion that the Veteran's current back conditions is not related to the service. The opinion is thus insufficient. The examiner was also asked to provide a separate and clear response regarding whether any current back disability to include arthritis had onset during active service or by November 1978. Such opinion was not provided as requested. See Stegall, 11 Vet. App. at 271. Regarding whether the Veteran's low back disorder is caused or aggravated by his service-connected prostatitis, according to the August 2014 VA examination report, the examiner indicated that it is less likely than not that the Veteran's low back disability is caused or aggravated by his prostatitis because prostatitis has not been reported in evidence based medical literature to cause degenerative joint disease of the back and the low back pain reported in December 1977 is referred pain from prostatitis and not an arthritis condition. Although the examiner indicated that VBMS records, including service treatment records, were reviewed, it is unclear if the examiner reviewed the relevant records. Of note, the examiner repeatedly referred to a December 1977 service treatment record. While a December 1976 service treatment record and a December 1977 VA treatment record both reference the Veteran's prostate problems and back pain, it is unclear which, if either, the examiner is referencing for his rationale. Further, as noted in the prior remand, the Veteran's service treatment records dated in November 1972 indicate that he complained of low back pain and was diagnosed with probable prostatitis. In January 1974, February 1974, December 1974, and February 1977, the same complaints were recorded, with a notation of a history of prostatitis. While the rationale indicates that prostatitis does not cause the Veteran's current back problems, the opinion does not provide a rationale regarding whether the Veteran's prostatitis aggravates his low back disability. 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). The Board finds that an addendum opinion addressing the aforementioned deficiencies is necessary to decide the claim. Prior to obtaining a VA addendum opinion, any outstanding, pertinent treatment records should also be obtained. As the Veteran is regularly treated at VA, any outstanding VA outpatient treatment records should be obtained. The most recent VA outpatient treatment records on file are dated in September 2014. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Phoenix, Arizona, from September 2014 to the present. All efforts to obtain such records must be documented in the claims file. If it is reasonably certain these records do not exist or that any further efforts to obtain them would be futile, document such in the claims file and provide the Veteran appropriate notice. 2. Forward the claims file to the examiner who conducted the July 2013 VA examination. If he is no longer available, forward the claims file to a suitable substitute. If any examiner deems a new examination necessary, so schedule the Veteran. (a) The examiner should opine as to whether there is clear and unmistakable evidence that the Veteran's low back disorder preexisted his entrance into active service in November 1971, specifically considering his reported history of back infection and asymptomatic lordosis on his service entrance examination. (b) If it is determined the Veteran's low back disability clearly and unmistakably preexisted his active service, the examiner should opine as to whether there also is clear and unmistakable evidence that such was not aggravated (made permanently worse beyond the natural progression of the disease) during or by his active service, specifically considering his lay statements as to in-service low back injuries as well as his in-service treatment for prostatitis where complaints of low back pain were recorded. The examiner is advised that the evidentiary standard whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." (c) If it is determined the Veteran's low back disability did not clearly and unmistakably preexist active service, the examiner should opine as to whether it is at least as likely as not Veteran's low back disability began during active service or is related to any incident during active service, including consideration of his lay statements as to in-service low back injuries as well as his in-service treatment for prostatitis where complaints of low back pain were recorded. (d) In a clear and separate response, the examiner should opine as to whether it is at least as likely as not that the Veteran's diagnosed low back disability, to include arthritis, had its onset during active service or by November 1978 (within one year of his separation from active service). (e) If it is determined that the Veteran's low back disability did not clearly and unmistakably preexist active service, or was not incurred in active service or have its onset by November 1978, the examiner should opine as to whether it is at least as likely as not that the Veteran's low back disability is proximately due to, or the result of, his service-connected prostatitis, considering his treatment for prostatitis during and after service where complaints of low back pain were recorded. (f) In a clear and separate response, the examiner should also opine as to whether it is at least as likely as not that the Veteran's low back disability has been aggravated (made permanently worse beyond the natural progression of the disease) by service-connected prostatitis, considering his treatment for prostatitis during and after service where complaints of low back pain were recorded. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The claims file, to include a copy of this Remand, should be made available to the examiner for review, 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 opinion cannot be provided without resorting to mere speculation, the examiner should so state and also explain why an opinion cannot be provided, as merely stating this will not suffice. 4. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). _________________________________________________ K. PARAKKAL 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) (2016).