Citation Nr: 1756928 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-20 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a thoracolumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1960 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2016, the Board remanded the Veteran's case for additional development. The case is now again before the Board for further appellate consideration. The record before the Board consists of electronic records within the Veterans Benefits Management System. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claim is decided. The Veteran has been diagnosed with degenerative disc disease of the lumbar spine. He contends this condition is related to an injury he suffered while playing football in service in the fall of 1962. The Veteran's service treatment records (STRs) show that in November 1962, he reported persistent lower back pain after being tackled during a football game. He was treated at the Naval Air Station at Barbers Point and then admitted to Tripler Army Hospital in December 1962 where he was treated with strict bed rest, bed board, muscle relaxants, and local heat to the lumbosacral area. He was discharged back to duty later in December 1962. The Veteran was afforded a VA examination in July 2010, at which time a VA examiner opined that the Veteran's degenerative disc disease of the lumbar spine was not related to service. In its November 2016 remand, however, the Board determined the July 2010 VA examiner had inaccurately recounted the Veteran's medical history, failed to address the Veteran's lay statements recalling continuous back pain since service, and failed to provide any rationale to support his opinion. Accordingly, the Board remanded the claim for a new examination and opinion, and instructed the VA examiner on remand to address the Veteran's competent and credible lay statements regarding his in-service injury and continuous back pain since that time, in addition to all relevant medical records. Accordingly, the Veteran was afforded an additional VA examination in February 2017. The examiner provided a diagnosis of degenerative disc disease of the lumbar spine. He noted the Veteran's account of his in-service football injury, subsequent hospitalization, and continuous, gradually worsening low back pain since service. With regard to the etiology of the Veteran's current disability, the examiner stated that it would be with resort to mere speculation to opine regarding the relation of the disability to the Veteran's in-service football injury because "there were no records to confirm the relation of the Veteran's current low back disability to the football injury incurred in service." The RO subsequently sought clarification from the examiner, and in a February 2017 addendum to his opinion, the examiner stated that he had reviewed the Veteran's records again and had no additional opinion to provide. He then stated the following: "[t]he main issue ... is that the [V]eteran's history appears to be credible but I cannot find a record to confirm his statement, i.e. there is no document from a particular day in 1962 showing that he had back injury on that day when he was playing football. In conclusion, my opinion is based on the absence of that document which I cannot locate." On review of the foregoing, the Board notes it is unclear whether the VA examiner premised his inability to provide an opinion on the absence of any records relating the Veteran's current low back disability to the football injury incurred in service, as stated in the original examination report, or on the absence of records corroborating the occurrence of the in-service football injury, as stated in the addendum to the report. With respect to the first issue, the Board notes that the examiner acknowledged the Veteran's report of continuous pain from the date of his in-service injury to the present day, and stated the Veteran appeared to be credible. The examiner, however, failed to explain why the Veteran's own statements, if deemed credible, could not be relied on as evidence that his current disability was related to his in-service injury. With regard to the second issue, contrary to the examiner's assertion, the Board again notes the Veteran's STRs clearly show he suffered a lower back injury while playing football in November 1962. The records show he was hospitalized for treatment of his lower back, and was not discharged back to duty until later in December 1962. In light of the inadequacies and oversights in the February 2017 examination report and addendum, as summarized above, the Board finds a remand is necessary in order to obtain an additional addendum opinion from the VA examiner to address these outstanding issues. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, forward the Veteran's claims file to the February 2017 examiner, or if he is not available, to another qualified examiner, to determine the nature and etiology of the Veteran's thoracolumbar spine disability. If the examiner finds an additional examination is necessary, such an examination should be scheduled. Following a review of the relevant records and lay statements, and an additional examination if deemed necessary, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current lower back disability originated during or is otherwise etiologically related to his military service. In providing his or her opinion, the examiner must address the Veteran's STRs, which clearly show he suffered a lower back injury during a football game in November 1962, for which he was hospitalized, as discussed in more detail on page 2 of this remand and in the STRs. The examiner must also address the Veteran's competent lay statements to the effect that he has had lower back pain since service to the present day. With regard to his in-service lower back treatment and his reports of continuous lower back pain since service, the examiner is advised that the Board has determined the Veteran is credible. As such, the examiner should assume the Veteran is a reliable historian. The examiner must provide a rationale for any proffered opinion. 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. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).