Citation Nr: 1724364 Decision Date: 06/28/17 Archive Date: 07/10/17 DOCKET NO. 10-03 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his mother. ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from November 1994 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the issue of entitlement to service connection for spinal fusion, claimed as lumbar disc condition, as entitlement to service connection for a low back disorder. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing in April 2017. A transcript of that hearing has been associated with the claims file. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that he is entitled to service connection for a low back disorder. A February 1997 service treatment record notes the Veteran reported experiencing low back pain for roughly one year. The Veteran reported that he felt pain after lifting frozen food, but denied any popping or cracking at the time of the injury and denied any previous injury to his back. The Veteran complained of pain when sitting for long periods and that the pain is constant and dull, getting sharp at times. A Muscular ligamentous strain of the lower back was. A service treatment record from September 1997 notes the Veteran reported experiencing low back pain for a few years. The pain was noted as intermittent and had been exacerbated by sit ups. An x-ray was noted, as was a consultation for physical therapy. The Veteran was told not to perform sit ups for a month. The Veteran's July 1998 separation examination notes the Veteran reported intermittent mid to lower back pain with no radicular symptoms and no medications taken. The Veteran reported that his back was bothering him worse than compared to his prior medical assessment. Additionally, the Veteran stated an intention to seek VA disability benefits for his back. An August 2005 medical treatment record from Dr. B. notes the Veteran reported constant, bilateral lower back pain that disturbs his sleep, as well as left side groin pain. Coughing, sneezing, bending, sitting, standing, and walking made the pain worse. Dr. E. further noted that the Veteran had this condition for the prior nine years "with no known injury." A February 2010 letter from Dr. B. noted that he first saw the Veteran in August 2005 for a report of low back pain for the prior nine years. The Veteran reported that in September 1995 the Veteran felt something "pop" in his back when lifting frozen food and was diagnosed with muscular ligamentous strain for which he was placed on light duty for two weeks. It was noted that an MRI in July of 2005 found a central disc herniation at L5-S1 with an extruded fragment and a central disc herniation at L4-5. Subsequently, the Veteran underwent surgery to remove the herniated discs. Dr. B. opined that the Veteran was misdiagnosed while in service, due to the Veteran reporting no testing being done, and that the Veteran's lumbar fusion was necessary due to the in service injury. A VA treatment record from February 2011 notes that the Veteran was seeing Dr. B. for back pain due to a workers' compensation injury. In July 2015, VA sent the Veteran a development letter asking for the Veteran to complete and return a VA Form 21-4142 authorizing the release of his treatment records with the Ohio Bureau of Workers' Compensation. The Board notes that the Veteran did not respond to this request. The Veteran testified at an April 2017 travel Board hearing. The Veteran reported that while on active duty in 1997 he was unloading a food truck and, upon picking up a box, he heard a loud pop in his back and "really couldn't stand up, and it's never been the same since." The Veteran stated that there was another incident where he was doing sit ups during physical training (PT) which reinjured his back. The Veteran stated that he continued to have back problems from the time he initially hurt it through the remainder of his enlistment. The Veteran stated that he went to Dr. B. in 2005 and received physical therapy and then back surgery in 2006. The Veteran stated that Dr. B. told him he suffered from disc displacement and had to undergo fusion surgery. The Veteran then stated he went to see Dr. B. "shortly after" getting out of the service and that from the time he hurt his back in service "it never changed." The Veteran then stated that his family doctor, Dr. E., treated him after he got out of the service and was not certain if he had ever submitted those records. The Veteran stated that Dr. E. recommended Dr. B. to him. The Veteran stated that when he filed for workman's compensation he advised them his back injury occurred during active service, but also stated that after service he worked at General Extrusions, an aluminum plant, as a tow motor operator which required lots of sitting and that "when [he] sit[s] a lot is when [his] back's just destroyed." The RO denied the Veteran's claim on the basis that the service treatment records do not show a lumbar disc injury sustained while in the service, and because Dr. B.'s opinion was made without the benefit of having seen the Veteran's service treatment records and relied on the Veteran's statements which, with regards to whether he felt a popping, was contradicted by the service treatment records. Additionally, the Board notes that the RO has not afforded the Veteran an examination, with the explanation that the Veteran has not signed an authorization to release records from the Ohio Bureau of Workers' Compensation and, as such, an examiner would have to speculate. Here, the Board finds that without providing the Veteran with a VA examination, there is not enough evidence of record to decide the claim. Pursuant to VA's duty to assist, an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is evidence that the low back condition may be related to service, but, it certainly is not clear given that the notations in the STRs do not support the claim. The Veteran is advised that it is his responsibility to report for his examination and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2016). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. Request the Veteran to identify any outstanding, relevant private treatment records, to include providing the appropriate authorization for release, to include from the Ohio Bureau of Workers' Compensation. All records obtained must be associated with the claims file. 3. After completion of steps one and two above to the extent possible, arrange for the Veteran to undergo a VA examination with an appropriate physician to determine the nature and etiology of the Veteran's claimed condition. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his low back disorder. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should set for the current diagnosis or diagnoses related to the low back and offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any identified low back disability had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must address the Veteran's contentions regarding his low back pain beginning in service. The examiner must include the underlying reasons for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ K. J. ALIBRANDO 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).