Citation Nr: 1756571 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-05 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to June 1975 and from September 1979 to December 1980. He also served in the National Guard from 1975 to 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In October 2016, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the evidence, the Board finds that further development must be completed regarding the Veteran's claim for service connection for a back disability prior to adjudication by the Board. In this regard, the Board notes that the Veteran has a current diagnosis of degenerative disc disease and he has consistently reported low back pain to his treatment providers. In his submissions to support his claim, hearing testimony, and medical records, the Veteran revealed that, prior to his active service in 1979, he was injured in a fall off a barn and a motorcycle accident. The Veteran's lay statements and service treatment records confirm an accident that took place while he was in service where he fell down the stairs of an aircraft and was injured. The Veteran's contention is that his in-service fall aggravated his pre-service injuries and is ultimately responsible for his current disability. However, as this is a complex medical question and the Veteran has not been shown to have specialized education or experience to make such an assertion, a medical opinion is necessary. Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony is not competent to prove that which would require specialized knowledge or training, including matters requiring medical expertise.) This matter was previously remanded in order to provide the Veteran an examination in connection to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the examiner was asked to provide opinions about whether the Veteran's back injury had its onset in or is otherwise related to his periods of active service. Further, the examiner was asked to provide an opinion on the following: assuming that the Veteran did sustain a pre-service back injury and has residuals of the injury, is it at least as likely as not (50 percent or greater probability) that the Veteran's pre-service back injury was aggravated beyond its natural progression by service, to include the documented fall. The Veteran attended a VA examination in April 2017. After review of the records and an examination of the Veteran, the VA examiner gave the opinion that the Veteran has the following back conditions: chronic sprain, degenerative arthritis of the thoracolumbar spine with scoliosis, and degenerative disc disease. The examiner first gave the opinion that it is less likely than not that the fall in service caused the Veteran's current thoracolumbar condition. In support of his rationale, the examiner pointed to the fact that the Veteran clearly had a pre-existing injury, he could not complete his first round of basic training, and he should "never have been admitted" to the Air Force in 1979. After reviewing the service treatment records and separation examination, the examiner noted no positive findings of the Veteran's back at separation and the Veteran denied any problems with his back. With regard to whether his back condition was aggravated, the VA examiner found that it is not likely that the pre-existing thoracolumbar condition had been aggravated beyond normal by service. In so finding, the examiner noted that there was a gap between 1980 and the next records of the Veteran's back in 2009. Further, the Veteran had many different types of manual labor jobs since service. Given everything, the examiner found that it is most likely that the fall off the barn roof prior to service and the natural progression from that injury to be the cause of the Veteran's current thoracolumbar conditions. However, there are several issues with the opinion. First, the VA examiner does not fully consider whether the fall in-service could have caused the Veteran's back impairment. As provided in the prior remand order, there is evidence that the Veteran injured his back in a fall while in the Air Force in 1980. While the Veteran did have a prior injury to his back, either through the fall from the barn or the motorcycle accident, this opinion does not sufficiently identify why the injury in-service did not cause the Veteran's current disability. Second, the Veteran complained that his back pain worsened in July 1980, his complaints of back pain are listed in his separation examination, and, while in treatment for back pain in January 1995, the Veteran pointed to the fall in the Air Force as the cause of his pain, not to earlier incidents. Further, the VA examiner does not sufficiently address whether the Veteran's pre-existing injuries were aggravated by his injury in-service. First, the examiner points out that there were no records of treatment between 1980 and 2009 and that he did manual labor during that time. However, the Veteran had treatment for his back in 1995, for which documentation is of record. Further, the examiner does not adequately consider how the in-service injury might have aggravated the Veteran's pre-service injuries. In addition, the examiner's opinion did not have the correct standard of proof for evaluating the aggravation of a pre-existing injury (that the pre-service injury clearly and unmistakably was not aggravated during service). Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). On remand, given that no opinion of record adequately addresses the Veteran's theory that his back disorder either was incurred in-service or that a pre-existing back disorder was aggravated by service, the Veteran should have an opportunity to have another examination for his claim of service connection for a back disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination for his back disability. The claims file and a copy of this Remand should be made available to the examiner. The examiner is asked to provide opinions and include a detailed rationale as to the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran's back disability began during service or is etiologically related his duties, including the fall that occurred in 1980, to include a continuity of symptomology since service. Further, if, and only if, the back disorder did exist prior to service, does clear and unmistakable evidence exist that shows that worsening of the Veteran's back was due to the natural progress of his spine and not aggravated by service, to include physical trauma from falling while in service? In providing these opinions, the examiner should acknowledge the Veteran's pre-service and in-service injuries. A rationale is requested for any opinion given. 2. Readjudicate the appeal. 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 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). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).