Citation Nr: 1751661 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-05 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative joint and disc disease with left leg sciatica and numbness. 2. Entitlement to service connection for cervical spine degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to February 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was scheduled for August 2017; notice was mailed to the Veteran's address of record and to his representative. The Veteran did not attend his hearing and has not since requested a new hearing. Accordingly, the Board will consider his request for a hearing withdrawn and proceed with adjudication. In June 2013, the Veteran requested an "indefinite" extension to obtain private medical records. Because over four years have passed, the Board will proceed with adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims. The Veteran stated that he was injured from a falling crate and compressor during service and was in the hospital for back and neck injuries. Service treatment records (STRs) confirm complaints of lower back pain in January 1981. An October 1989 VA examination reflects complaints of mid and lower back pain. Complaints of neck pain and back pain date back in VA treatment records to at least June 2006; in August 2006, there is a confirmed diagnosis of cervical degenerative disc disease and a February 2007 x-ray showed severe lumbar discogenic changes. However, the Veteran separately reported that his back pain began in 2009 after he was in a car accident. See, e.g., June 2012 VA treatment records. The Veteran underwent a VA lumbar spine examination in July 2012, wherein the examiner opined it was less likely than not the Veteran's lumbar spine disability was incurred in or caused by a back injury during military service. The examiner explained that an x-ray done during service was negative, the in-service complaints of lumbar strain were localized to the right instead of the left, lumbar strain typically has complete resolution in a spontaneous fashion, and the fact that almost 30 years passed from the date of the Veteran's first reported lumbar strain to the onset of severe lower back and left leg radicular complaints make it highly unlikely that the military episode was responsible for his current disability. The July 2012 examination is inadequate because the examiner relied on an inaccurate factual background. The examiner appears to ignore the reported symptoms of pain in the mid and low back noted in the October 1989 VA examination. Indeed, the examiner opined that it had been 30 years until there were complaints of severe lower back and left leg pain, when in fact there had been complaints of lower back pain as early as October 1989. Accordingly, a new medical opinion is needed. The Veteran has a cervical spine diagnosis and reported an in-service event that is confirmed, at least in part, by his STRs. As a result, there are medical questions that remain as to whether the Veteran's military service caused his cervical spine degenerative disc disease. The low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006), is satisfied, and remand for a VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from June 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. After the above development is completed, the AOJ must arrange for a medical opinion to determine the nature and cause of the Veteran's lumbar spine degenerative joint and disc disease with left leg sciatica and numbness, with examination only if deemed necessary by the examiner. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must opine as to the following: Is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the Veteran's lumbar spine degenerative joint and disc disease with left leg sciatica and numbness was incurred in or related to the Veteran's military service? Please explain why. The examiner should address the Veteran's statements that he was injured from a fallen crate and compressor in service and that his injury has progressively become worse, as well as complaints of back pain from at least October 1989 (although the Veteran later reported significant back pain as a result of a 2009 car accident). A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 3. After the development in the first instruction is completed, the AOJ must arrange for an examination to determine the nature and cause of the Veteran's cervical spine degenerative disc disease. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must opine as to the following: Is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the Veteran's cervical spine degenerative disc disease was incurred in or related to the Veteran's military service? Please explain why. The examiner must address the Veteran's statement that he was injured from a fallen crate and compressor during service and that his injury has progressively become worse, with complaints of neck pain from at least June 2006. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 4. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claims. 38 C.F.R. § 20.1100(b) (2017).