Citation Nr: 1753361 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-07 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Kuczynski, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in March 2013 in connection with his claim. The examiner diagnosed him with a compression fracture at T7, 8, and 9 and degenerative disc disease at L5-S1status post microdiscectomy. It was noted that the Veteran was not sure how he sustained compression fractures except for a football injury during service. He reported hitting a guy playing football and sustaining a left shoulder separation and back strain. The examiner noted that x-rays had not revealed a fracture. The Veteran also reported reinjuring his back after service following a twisting motion and indicated that he was sore for approximately four weeks. He denied having been in a motor vehicle accident or having any other injury. In addition, the Veteran told the examiner that his lower back pain developed acutely at work and that he is on workman's compensation for that injury. He later underwent a microdiscectomy in September 2012 and developed an infection necessitating intravenous antibiotics and a PICC line. The March 2013 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so doing, she observed that the Veteran's service treatment records document treatment for a low grade lumbar strain due to pitching in softball in June 1982 and a first degree acromioclavicular separation that occurred in September 1983 while playing football. However, the hospital emergency room records included x-rays of his shoulder and no back pain was documented during several follow-up appointments. There was also no mention of chronic back pain at the time of his separation examination or any documentation of back pain within one year of his military service. The examiner further noted that the Veteran able to perform physically demanding work until 2012 when he injured his lower back at work. She stated that there was no history or documentation of an injury or condition during or just after service that could be associated with three thoracic vertebral compression fractures or degenerative disc disease of the lumbar spine. The examiner explained that compression fractures and ruptured vertebral discs due to trauma are quite painful and debilitating for several weeks and not likely to go unnoticed or treated as a mild strain. She also commented that compression injuries usually occur when significant force is involved like a motor vehicle accident or a severe football injury. Even though a football injury was documented in service, there was no documentation of back pain at that time; the records only note his left shoulder injury. Moreover, the examiner stated that, even though the Veteran was unable to recall any other traumatic events in his life that would cause these conditions, the documentation of the in-service injuries does not support an association with the current conditions. Thus, without further documentation of an injury during service, the examiner concluded that the Veteran's thoracic vertebral compression fractures and degenerative disc disease lumbar spine L5-51 with microdiscectomy were less likely as not occurred in or related to his military service. Although the March 2013 VA examiner found that there is no history or documentation of an injury or condition during or just after service that could be associated with three thoracic vertebral compression fractures or degenerative disc disease of the lumbar spine, there is a June 1985 radiographic report noting minimal compression and degenerative changes in the thoracic spine. The Veteran's service treatment records also note mild scoliosis in the thoracic area in January 1983. As the examiner did not address these findings, the Board finds that an additional medical opinion is needed. The Board also notes that the claims file does not contain the Veteran's workman's compensation records. Thus, on remand, the AOJ should attempt to obtain such records. In addition, in a March 2013 statement, the Veteran has reported that he began working for a glass company after service and that he was sent to Woodford Memorial hospital for a chest x-ray at which time the physician informed him that he had three fractured vertebrae. The claims file does not include those medical records. Thus, on remand, the AOJ should also attempt to obtain those records. See April 16, 2014 VA Form 21-4142. In addition, during a November 2014 VA examination, the Veteran reported that he was applying for disability benefits from the Social Security Administration (SSA). As this case must be remanded, the AOJ should secure any SSA decisions and the records on which such a decision was based. Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran a notice letter in connection with his claim for service connection. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. The letter should also explain how disability ratings and effective dates are determined. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back. A specific request should be made for the records identified in the June 2014 VA Form 21-4142. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 3. The AOJ should attempt to obtain any records pertaining to the Veteran's worker's compensation claim since 2012. 4. The AOJ should obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current back disorder manifested in service or within one year thereafter or that is otherwise etiologically related to the Veteran's military service, including any injury and symptomatology therein. In rendering this opinion, the examiner should specifically consider the service treatment records documenting a back strain in 1982, a January 1983 notation of mild scoliosis in the thoracic area, and a June 1985 radiographic report noting minimal compression and degenerative changes in the thoracic spine. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's electronic claims file, or in the alternative, access to the electronic claims file, must be made available to the examiner for review. 6. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 7. After completing the above actions and other development indicated as a consequence of the preceding actions, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).