Citation Nr: 1743322 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 10-05 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran had active service from September 2003 to March 2004 and August 2006 to December 2007, including service in Southwest Asia. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied entitlement to service connection for a low back disability. The Veteran timely appealed that issue. In an August 2015 decision, the Board denied service connection for the low back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 memorandum decision, the Court set aside the Board's decision and remanded it for readjudication. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a low back disability, which he asserts is due to carrying gear and jumping out of helicopters while on active duty. See VA Form 21-526, received February 2008. In connection with his claim, the Veteran underwent VA medical examination in January 2009. The examiner's impression was "musculoligamentous thoracic spine pain" but did not provide an opinion as to the etiology of the claimed low back disorder. In September 2012, the Board remanded the matter for further development, to include obtaining a medical opinion to clarify whether the notation of musculoligamentous thoracic pain denoted a disability due to an underlying disease or injury, or whether it is descriptive of pain alone. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (holding that"[p]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). Additionally, the Board's remand requested that the medical opinion determine the etiology of any current low back disability. A medical opinion was completed in October 2012 and noted the Veteran's complaints of low back pain but found no lumbar spine abnormalities except painful motion. The opinion stated that it was less likely than not (less than a 50 percent probability) that the low back pain was causally related to hauling gear and/or jumping out of helicopters while in service or otherwise causally related to service due to lack of supporting evidence. The medical opinion did not address the Board's request to clarify whether musculoligamentous thoracic pain denotes a disability due to an underlying disease or injury, or whether it is descriptive of pain alone. Nevertheless, in its August 2015 decision, the Board found that the RO substantially complied with the remand directives and that there was no evidence of a current diagnosed disability, and denied the Veteran's claim for service connection. The Court found that the VA medical opinion was inadequate because it did not specifically determine that the Veteran did not have an underlying disease or injury, but rather indicated that the Veteran had a diagnosis of "back pain," which suggests that the examiner was not advised of the directive to clarify whether musculoligamentous thoracic pain denoted a disability due to an underlying disease or injury. This is also evidenced by the Disability Benefits Questionnaire form itself, which fails to list that directive for the examiner. Thus, the Court determined that additional development is warranted. The Court also addressed the Veteran's contention that the January 2009 VA examiner's reference to a private "MeritCare" examination showing "no thoracic spine abnormality" should trigger VA's obligation to obtain this private record. In a good faith effort to obtain a complete record, on remand, the RO should attempt to locate this private treatment record. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary information and authorization from the Veteran, undertake the necessary efforts to obtain treatment records from MeritCare Clinic for the Veteran's lower back treatment. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for a VA medical examination to determine the nature and etiology of any current low back disability. Access to the Veteran's VA claims file must be made available for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should identify any current low back disability found on examination, if any. In providing this opinion, the examiner must clarify whether the previously diagnosed musculoligamentous thoracic spine pain denotes a disability due to an underlying disease or injury, or whether it is a description of pain alone. With respect to any current low back disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that it is causally related to the Veteran's active service or any incident therein, to include hauling gear and/or jumping out of helicopters. A rationale for all opinions offered is required. 3. Thereafter, readjudicate the claim. If the benefit sought 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 Veteran 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. CONNER 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).