Citation Nr: 1740916 Decision Date: 09/20/17 Archive Date: 10/02/17 DOCKET NO. 12-35 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. In March 2015, the Board remanded the case for additional development and it now returns for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he has a current back disorder that is related to his active duty service. Specifically, at the September 2013 Board hearing, he testified that he first injured his back during his military service in 1975 or 1976 when he was cross-country skiing in Alaska. He further stated that he injured his back during service seven or eight times, to include playing football and falling down steps, and, after service, began seeking treatment in 1995. The Veteran also testified that he has continuously experienced back pain since he retired from the military, and denied any post-service back injuries. In this regard, the Veteran's service treatment records (STRs) reveal treatment for back pain in December 1975, August 1976, September 1976, October 1982, August 1984, May 1985, and April 1994. Furthermore, at the time of the Veteran's retirement in April 1994, he reported experiencing recurrent back pain. In July 2012, the Veteran underwent a VA examination to determine the nature and etiology of his back disorder. At such time, the examiner found that the Veteran had a diagnosis of multilevel degenerative disc disease since November 2007, and opined that the Veteran's back disorder was less likely than not incurred in or was caused by the claimed in-service injury, event, or illness. However, in its March 2015 remand, the Board found such opinion to be inadequate. In this regard, the examiner noted the Veteran's STRs reflected complaints of back pain in October 1982, August 1984, and May 1985; however, such also reflected complaints in December 1975, August 1976, September 1976, and April 1994, and, at the time of his April 1994 retirement, the Veteran reported experiencing recurrent back pain, which were not considered. Moreover, while the examiner noted the findings from the post-service treatment records, she did not consider the Veteran's reports noted in such records that his back pain began during service. Specifically, such included private treatment records dated in July 1995 in which the Veteran complained of lower back pain that started the prior Saturday. It was noted that he had a history of a back injury in 1986 while playing football, but had not been bothered by back pain since such time. However, in a separate record dated the same day, the Veteran reported having intermittent back pain for several years. Records dated in September 1996 and November 1996 reflected that the Veteran complained of back pain for the prior two to three years. Furthermore, a November 2010 VA treatment record indicated that the Veteran reported a history of chronic back pain since he was in the military. Similarly, in a March 2011 VA treatment record, the Veteran reported back pain on and off since the 1980's. Pursuant to the March 2015 remand, an addendum opinion was obtained in June 2015 by the same examiner who conducted the Veteran's July 2012 VA examination. After reviewing the record, including the Veteran's aforementioned STRs, post-service treatment records, and September 2013 hearing testimony regarding continuity of back symptomatology since service, the examiner opined that the Veteran's back disorder was less likely than not incurred in or was caused by the claimed in-service injury, event, or illness. In support thereof, the examiner noted that the Veteran sustained pulled muscles, spasms, and pain to his back while on active duty and he was treated acutely, and neither showed any evidence of any persistent/chronic residual symptoms while in service. She further explained that there were several normal physical examination of the Veteran's back during service and upon retirement, without the Veteran reporting recurrent back pain during the physical examinations or upon his retirement examination. Thus, she concluded that there was no documented proof of the Veteran's current diagnosed multilevel degenerative disc disease having its onset in service or otherwise related to his military service. The examiner also concluded that the Veteran's arthritis of the back did not manifest within a year of the Veteran's retirement from military service. In this regard, the examiner explained that the Veteran was examined for low back pain in July 1995, September 1996, and November 1996, and was diagnosed with a lumbar strain on all three occasions. The examiner also noted that the Veteran's MRI form November 1996 did not reveal arthritis and that degenerative changes were not evident until a November 2007 MRI, which was 13 years after the Veteran's separation from service. She explained that such findings were not unusual considering the Veteran's age, his body habitus, and occupation at the time of the findings. However, while the examiner provided an adequate opinion on whether the Veteran's arthritis of the back manifested within one year of his retirement from military service, the Board finds that a remand is necessary to obtain an addendum opinion regarding whether the Veteran's diagnosed back disorder is directly related to his service. Specifically, the examiner noted that the Veteran review of systems was not of record for his retirement examination and that the examiner did not report in the summary recurrent back pain, nor did he recommend any specialty treatment or further examinations for any conditions. Thus, the examiner concluded that there was no documentation of the Veteran reporting recurrent back pain during his retirement examination. However, the Board finds the examiner's statements unclear as the Veteran reported that he had or then had recurrent back pain on his April 1994 retirement report of medical history, which is of record. Furthermore, pursuant to the March 2015 remand, the examiner was specifically requested to consider the Veteran's report of recurrent back pain at the time of his April 1994 retirement examination in rendering her opinion. Therefore, the Board finds that an addendum opinion is warranted to allow the examiner to address such concerns. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who provided the June 2015 addendum opinion. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the June 2015 VA examiner is not available, the record 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 opinion. After reviewing the record, to specifically include the Veteran's lay statements, as documented in the July 1995, September 1996, November 1996, November 2010, and March 2011 post-service treatment records and at the September 2013 Board hearing, regarding the onset of his back problems and the continuity of back symptomatology, the examiner should offer an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's back disorder, diagnosed as multilevel degenerative disc disease at the July 2012 VA examination, had its onset in, or is otherwise related to, his military service, to include his documented in-service complaints and treatment, to include those noted in December 1975, August 1976, September 1976, October 1982, August 1984, May 1985, and April 1994. The examiner should also consider and discuss the April 1994 Report of Medical History, where the Veteran reported he had or then had recurrent back pain. A complete rationale for all opinions should be provided. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the June 2015 supplemental statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).