Citation Nr: 1751456 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-28 481A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a sleep disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to December 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2011 and May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2015, the Board remanded the matter of entitlement to service connection for a low back disability to afford the Veteran a VA examination. The Veteran was afforded a VA examination in November 2015 where the examiner opined that it was less likely than not that the Veteran's claimed condition was caused by service because her discharge physical examination was silent for a spine condition and a February 2015 VA treatment record, 23 years post separation, indicates that the Veteran complained of low back pain. The Board finds that the rationale for the opinion is inadequate for adjudication purposes. The examiner used the absence of service treatment records which showed back problems, without consideration of the Veteran's lay statements of back pain, to provide a negative medical opinion. Further, after the November 2015 VA examination relevant VA treatment records, including an x-ray report of the Veteran's tailbone (part of body which the Veteran claimed causes pain), were associated with the Veteran's electronic claims folder. Therefore, the Board finds that a remand is necessary to obtain an addendum medical opinion which addresses the lay reports, new treatment records and provides a thorough rationale for all opinions reached. While the matter for entitlement to service connection for a back disability was pending remand, the Veteran perfected her appeal for her claim for entitlement to service connection for a sleep disability. The Veteran contends that her sleep disability is related to her experience of sexual trauma during service. The Veteran is service-connected for PTSD due to sexual trauma. It is unclear if her claimed sleep disability is a symptom of her service-connected PTSD; caused or aggravated by her service-connected PTSD or a separate disability caused by service. Therefore, the Veteran should be afforded a VA examination which addresses any of these theories of entitlement. Finally, on remand, up to date VA treatment records should be associated with the Veteran's electronic claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain all recent VA treatment records and associate them with the electronic claims file. 2. Then, obtain an addendum opinion from the November 2015 VA examiner (or an appropriate medical professional). The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to review the claims file and offer an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability condition began in or is related to service. The examiner's attention is directed to the Veteran's statement that she injured her back during service after falling on the back of the tailgate of a truck while unloading rations. The examiner should assume that the Veteran is a reliable historian. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The November 2015 VA examination report appeared to use the lack of service treatment records documenting a back injury as a basis for the negative opinion. The examiner is requested to consider the Veteran's lay statements in addition to medical evidence of record. Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran's lay statements to provide negative opinion). Also, additional VA treatment records from multiple VA facilities were associated with the Veteran's claims folder after the November 2015 VA examination. The examiner is requested to review and comment on the newly associated treatment records which show complaints of chronic back pain. Also, x-ray reports of the Veteran's tailbone were also associated after the November 2015 VA examination. The examiner should review and comment on these reports. 3. Then, schedule the Veteran for a VA examination to determine the etiology of her sleep disability. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinions. The examiner is asked to offer opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep disability was incurred in or is otherwise related to service. The examiner's attention is directed to the Veteran's May 2016 Notice of Disagreement where she stated that her sleep problems began in 1989 after she was raped. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disability is caused by her service-connected disabilities, including her service-connected PTSD. If the examiner finds that the sleep disability is not caused by her service-connected PTSD, but merely a symptom of her PTSD, then supporting rationale must be provided. (c) Whether it is at least as likely as not that the Veteran's sleep disability is aggravated (i.e., permanently worsened beyond the natural progress) by her service-connected disabilities including her service-connected PTSD. If aggravation is found, the examiner should address the following medical issues: i. the baseline manifestations of the Veteran's sleep disability found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to her service-connected disabilities. The examiner's attention is directed to the Veteran's report that her sleep disability is related to her in-service sexual trauma. Please provide a complete explanation for all opinions reached. 4. Ensure the development outlined above has been accomplished, that the examination reports are adequate, and then arrange for any additional development indicated. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).