Citation Nr: 1639713 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 07-15 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lower back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from May 29, 1985 to August 2, 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2008. A transcript of this proceeding is of record. The Veteran's claim was initially denied by the Board in a decision issued in March 2009. However, pursuant to a Memorandum Decision issued by the United States Court of Appeals for Veterans Claims (Court) in June 2010, the March 2009 decision was vacated, and the Board remanded the case in January 2011 and December 2011 for further evidentiary development. The Board again denied the Veteran's claim in a decision issued in October 2014. However, pursuant to a Memorandum Decision issued by the Court, the portion of the October 2014 decision which denied service connection for a low back disorder was vacated. The portion of the October 2014 Board decision pertaining to an acquired psychiatric disorder, to include posttraumatic stress disorder based on personal assault was not disturbed. With regard to representation, the Veteran was previously represented by James G. Fausome, private attorney. In February 2015, Mr. Fausome withdrew himself from the case and in May 2016 the Veteran appointed Disabled Americans Veterans as his new representative. The Board recognizes this change in representation. This appeal is being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and the Virtual VA claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, the April 2016 Memorandum Decision indicates that a remand is required in this case due to perceived deficiencies within the Board's analysis in the October 2014 decision. The Veteran claims that he injured his low back during his military service while rappelling from a tower during basic training. While the Veteran's service treatment records (STRs) reflect one instance of treatment for back pain in July 1985, there are no subsequent STRs regarding the back. A review of the record shows that the Veteran injured his back again post-service in approximately 1987 and 2000 but a July 2000 X-ray of the lumbar spine shows "no acute bony abnormality." Significantly, the claims file includes a September 2006 radiology report which a chiropractor interpreted as revealing "evidence of trauma/injury to the sacrum between age 15 and 25 years old, according to developmental indications of the sacrum views." The Memorandum Decision noted that a May 2012 VA examiner found that "[t]he Sept[ember] 2006 x-rays indicate a possible injury occurring sometime in a 10 year period of time between age 15 [to] 25." The Veteran was born in June 1967 and served from May 1985 to August 1985. Thus, the May 2012 examiner's statement that an injury may have occurred between the ages of 15 and 25 implies an injury sometime between 1982 and 1992, which includes the Veteran's service in 1985. The May 2012 examiner also stated, however, that the Veteran's back x-rays from the year 2000 "do not indicate a sacral injury" and that, "therefore, the [September 13,] 2006 x-rays showing a sacral injury may reflect an injury that occurred between 2000 and 2006, . . . a period of time the [V]eteran was not in the military." It was unclear to the Court how the May 2012 examiner can state both that "[t]he Sept[ember] 2006 x-rays indicate a possible injury occurring sometime in a 10 year period of time between age15 [to] 25"-i.e., 1982 to 1992, to include the Veteran's period of service-and also that the September 2006 "x-rays showing a sacral injury may reflect an injury that occurred between 2000 and 2006," when the Veteran was not in service. Given the confusion generated from the statements in the May 2012 opinion, an addendum opinion is necessary in this case. Significantly, the Court implied that the May 2012 examiner may have intended to state that the author of the September 2006 radiology report suggested a possible injury occurring between age 15 and 25 but that the May 2012 examiner did not agree with this finding. On remand, a medical opinion should be obtained to resolve the discrepancy in the May 2012 opinion. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the May 2012 opinion. The electronic file should be made available to the examiner. The reviewer should note in the examination report that the claims file has been reviewed. If the May 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinions. After reviewing the record, the ultimate question to be addressed is whether it is at least as likely as not that any currently-diagnosed lower back disorder had its onset in or is otherwise related to service. In arriving at the conclusion, the reviewer should note the September 2006 radiology report that states that the Veteran incurred a trauma to his sacrum between the ages of 15 and 25 (which encompasses his 3 months of service in 1985 and a work-related accident that he has reported occurred in 1987) and state whether the reviewer agrees with that interpretation or conclusion. The reasons for the reviewer's conclusion on that particular question should be set out, as well as for the reviewer's conclusion with respect to the ultimate question. 2. After accomplishing any needed notice and assistance obligations, as well as any other additional development considered necessary, the RO should review the evidence of record, including that which has been obtained since the last supplemental statement of the case was issued (in May 2014), and re-adjudicate the claim for service connection for a low back disorder. If the claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case, and given an opportunity to respond before the case is returned 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 2014). _________________________________________________ MICHAEL E. KILCOYNE 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).