Citation Nr: 1751602 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 06-25 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to October 1989, and from March 2003 to April 2004; with additional service in the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2010, April 2014, and December 2016 the Board remanded the matter for additional development; including a VA examination. On review of the latest (December 2016) examination report the Board finds that further action is needed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the Board's December 2016 remand directives the Veteran was afforded a VA examination in December 2016. Upon review of the medical opinion the Board finds that it does not fully comply with the Board's remand directives and is otherwise inadequate. The December 2016 Board remand, the RO was requested to obtain a medical opinion as to whether any of the back disabilities were caused by or aggravated by service connected disabilities, specifically, diabetes mellitus Type II and/or gouty arthritis of the great toe as claimed by the Veteran. A review of the opinion obtained in December 2016 shows that an opinion as to the relationship, if any, between the currently diagnosed back disabilities and the service connected disabilities was not provided. As such, the Board directives have not been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, military records confirm that the Veteran served on inactive duty for training (weekend drill) from March 7-8, 1998; and private medical records dated March 9, 1998, document the Veteran as reporting that he had slid into a picnic table while playing basketball on Sunday, March 8th; striking his back in 2 places. On Monday, March 9th the Veteran sought treatment for back pain. Physical examination on March 9th found muscle contusions; and x-rays taken on March 10, 1998, found "some very minimal arthritic changes at the L2-L3 level anteriorly." This is the first diagnosis of lumbar spine arthritis in the medical evidence of record. See also prison medical records dated in December 2005, which show a diagnosis of low back strain. Moreover, according to a VA medical expert, "the patient suffers from chronic low back pain that is more probably than not related to degenerative disc disease in his lumbar region." See January 2010 VA expert medical opinion. Additionally, there is current medical evidence of "mild facet degenerative changes . . . in the mid and lower lumbar spine," including at L3. See December 2016 VA examination report, p. 9. Moreover, DDD at L4-5 and facet atrophy at L3-4 have been diagnosed. However, the December 2016 VA medical opinion only addressed preservice tailbone fracture, spina bifida occulta and/or right mild-lumbar back muscle, and commented on the low back arthritis only tangentially. As such, the opinion is inadequate as it does not fully address all the diagnosed back disabilities. For the reasons above, a new medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Send the file to a VA examiner with sufficient expertise to determine the etiology of all low back disorders present during the period of the claim, other than the one who conducted the December 2016 VA examination. All pertinent evidence of record must be made available to and reviewed by the physician and the examination report should state the review was conducted. Any indicated studies should be performed. After a review of the claim file, the examiner is requested to identify all currently diagnosed low back disabilities. With respect to each low back disability present during the period of the claim, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disability began during service, is otherwise etiologically related to the Veteran's active service, or whether it was caused by service-connected disability or disabilities, or was aggravated by service connected disability or disabilities, specifically diabetes mellitus Type II and/or gouty arthritis of the great toe. A full rationale for the opinions must be provided, with discussion of the evidence of injury during service, the December 2005 determination that it was, "not likely that [the Veteran] would be able to attribute his current back symptoms solely to the 1985 or 1998 incidents since there was no definitive pathology identified at those times," the July 2010 VHA medical opinion, and the November 2014 and December 2016 VA examination reports. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. After completion of the above and any other development deemed necessary, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case and return the case to the Board. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).