Citation Nr: 1743072 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 14-22 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel INTRODUCTION The Veteran had a period of active duty service from July 1959 to June 1967 and service from July 1967 to September 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A video conference hearing was held before the undersigned Veterans Law Judge (VLJ) in June 2017. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND The Board finds the September 2011 VA examination inadequate to adjudicate the issue on appeal. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d)(1) (West 2014); 38 C.F.R. § 3.159 (c)(4) (2016). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran's most recent VA examination connected with the claim was on September 2011. The examiner did not include an opinion as to the etiology of the Veteran's degenerative disc disease of the lumbar spine and its relationship to the Veteran's period of service. In view of the need for additional development, the AOJ should contact the Veteran and request information as to any outstanding treatment records, lay statements, post-service VA or private treatment records, employment health examinations, and specifically include records of a 1992 back surgery. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and reports. Once all the records have been obtained the AOJ should obtain an addendum opinion from the examiner regarding the etiology of the Veteran's low back disorder, to include any disc disease. If an examination is needed to determine whether the Veteran has a current disability of the lumbar spine, the AOJ must provide the Veteran with a VA examination and the examiner is requested to prepare an addendum opinion as to the etiology of the Veteran's disorder of the lumbar spine. Accordingly the case is remanded for the following action: 1. Contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding and associate them with the claims file including service treatment records (STR's), lay statements, post-service VA or private treatment records, and employment health examinations, and specifically include records of a 1992 back surgery. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and reports. Follow proper notification procedures if the records are unobtainable. All attempts to obtain records should be set out in the claims folder. 2. Thereafter, the RO is to obtain an addendum opinion from the examiner who performed the September 2011 VA examination to opine on the etiology of the Veteran's degenerative disc disease of the lumbar spine. If this examiner is unavailable, a similarly situated examiner should be requested to review the records and offer the requested responses. If an examination is needed the examiner is to determine if the Veteran has a current disability of the lumbar spine and the etiology. The examiner must be given access to all records contained in Virtual VA and VBMS, and a notation must be made that review of all records has been accomplished. After a thorough review of the medical history, the examiner is requested to prepare an addendum opinion which answers the following questions: a) Does the Veteran currently have a current chronic disability of the lumbar spine? If so, what is the most appropriate diagnosis? The examiner is specifically requested to address the September 2011 VA examination and any other private or VA treatment record that suggests the presence of degenerative disc disease of the lumbar spine. b) If the answer to a) is yes, taking into consideration the Veteran's service treatment records (STR's), lay statements, hearing records, post-service VA or private treatment records, and employment health examinations is it as likely as not (that is, a probability of 50 percent or greater) that any current disorder of the lumbar spine had its origin in service or is in any way related to the Veteran's active service? If the examiner cannot provide any of the requested opinions, they must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. 3. The AOJ must ensure that the examiner's report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that the examiner documents consideration of the electronic claims file, including any records contained in Virtual VA and VBMS. If the report is insufficient, the AOJ must return it to the examiner for necessary corrective action as appropriate. 4. After undertaking any other appropriate development, the AOJ shall re-adjudicate the issue on appeal. If the AOJ does not fully grant the benefit sought, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case and afford him an opportunity to respond thereto. 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). _________________________________________________ MICHAEL D. LYON 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).