Citation Nr: 1752974 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-35 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The appellant served in the California Army National Guard and Army Reserve from April 1976 to September 1976, with a verified period of active duty for training (ACDUTRA) from August 27, 1976 to September 28, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The appellant offered testimony before the undersigned Veterans Law Judge at a Board hearing in May 2013. A March 2015 Board decision reopened the appellant's low back claim and remanded the issue for further development. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record reveals that further development is necessary prior to the Board's adjudication of this case. The appellant's only active service was a period of active duty for training (ACDUTRA) from August 27, 1976 to September 28, 1976. Shortly after the appellant started his active duty training in August 1976 he sought treatment for low back pain. A September 1976 Medical Board found that the appellant's low back pain disability pre-existed active service. At his May 2013 Board hearing the appellant essentially indicated that he had not had any back issues or back injuries prior to his military service. In November 2015 the Board remanded this case for the purposes of obtaining a VA opinion that was to address the medical matters raised by this appeal. Although an opinion was obtained, the Board finds that the opinion is not adequate in that it was based upon an inaccurate medical history. In particular, the November 2015 VA examiner appeared to indicate that the appellant had not had any treatment for his low back disorder from 1976 to 2010. A review of the claims file, however, does reveal private low back treatment records during that time period. The Board also observes that the November 2015 VA examiner did not directly answer the requested questions. Accordingly, the appellant should be afforded another VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after November 9, 2015. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the appellant and his representative. 2. Contact the appellant and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the appellant and his representative. 3. After any additional records are associated with the claims file, provide the appellant with the appropriate examination to determine etiology of the low back disorder. The claims file must be made available to and pertinent documents therein reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The VA examiner must answer the following questions: (a) Upon clinical examination, does the appellant have a current disorder of the low back? Please specifically identify all low back disorders. (b) Is it at least as likely as not (a 50 percent likelihood or greater) that the appellant had a low back disorder prior to entering his active duty for training (ACDUTRA) in August 1976? If so, what was the specific low back disability at that time? (c) If (b) is answered in the positive, is it at least as likely as not that the appellant's low back disability was worsened in severity beyond its natural progression during his period of ACDUTRA service from August 27, 1976 to September 28, 1976? (d) If (b) is answered in the negative, for each currently diagnosed low back disorder, is it at least as likely as not that the disorder began during or is otherwise causally related to the appellant's period of ACDUTRA service from August 27, 1976 to September 28, 1976? (e) In rendering the above opinions, the examiner must consider and address, as appropriate, the following evidence: (1) Private medical records including a November 1990 private treatment letter from Dr. C.A.L. indicating that he treated the appellant prior to his ACDUTRA service for a low back disorder and leg pain from December 1974 to August 1975; a treatment note with a prior history of the appellant reporting low back pain after lifting boxes of glass in 1972; reports of low back pain and bilateral leg pain in December 1974 and May 1975; and May 1975 x-rays of the lumbar spine that were within normal limits; (2) The March 1976 service entrance examination which found normal spine; (3) A September 1976 clinical inpatient service treatment record from Moncrief Army Hospital, in which appellant stated that he hurt his low back years before when lifting at work; the examination was unremarkable, but it was noted his low back pain existed prior to enlistment, and he was not physically qualified for enlistment; (4) A September 1976 Medical Board report that assessed chronic low back pain and released the appellant from ACDUTRA for a condition which existed prior to enlistment; this included a PULHES "physical capacity or stamina" profile that was increased from "1" to "3" (indicative of certain assignment restrictions due to his low back); (5) November 1990 lay statements from the appellant's spouse and sister in which they described the appellant reporting back pain as a child and teenager to them, prior to his ACDUTRA service, with the condition becoming worse after his ACDUTRA service; (6) Lay statements from the appellant in which he asserts that he had chronic low back pain, which progressively worsened over time; statements denying that he had any back problems prior to his period of ACDUTRA service; and statements that his current back problems began during his ACDUTRA service due to the difficult physical training and duties; (7) Kaiser Permanente records dated from 1992 to 1998 that reveal treatment for chronic low back pain, with diagnoses of lumbar facet syndrome and probable degenerative disc disease or degenerative joint disease and lumbosacral strain; (8) A September 1998 private treatment report from Dr. W.W. noting a history of chronic back pain for 20 years back to 1978; (9) A March 2009 magnetic resonance imaging (MRI) report assessing degenerative disc disease and degenerative facet arthropathy of the lumbar spine and a June 2009 report from Dr. S.S. diagnosing lumbar spondylosis and discogenic syndrome and radicular syndrome; and (10) Social Security Administration (SSA) records determining the appellant was disabled since June 2010 for the above diagnoses and noting that he worked as a janitor from 1976 to 2010. 4. Notify the appellant that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the appellant does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the appellant and his representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). _________________________________________________ K. MILLIKAN 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) (2017).