Citation Nr: 1800187 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 13-21 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Amy R. Fochler, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 2000 to September 2004, with subsequent service in the Nevada Air National Guard from September 2004 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction of the appeal was subsequently transferred to the RO in Winston-Salem, North Carolina. In June 2016, the Veteran testified during a Board videoconference hearing before the undersigned. A transcript of the hearing has been associated with the record. In September 2016, the Board, in part, deemed evidence received since a March 2009 rating decision, as neither cumulative nor redundant, thus raising the possibility of substantiating the claim of service connection for a low back disability. Thus, the Board found the evidence was both new and material, and reopened the claim. The Board then remanded the issue of entitlement to service connection for a low back condition for further development, which has not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). In regards to the Veteran's claim for service connection for lichen planopilaris, as secondary to the service connected disability of post-traumatic stress disorder (PTSD), the Board notes that the Veteran filed an Appeal to the Board of Veterans' Appeals, VA Form 9 in October 2017 requesting a Board videoconference hearing. In December 2017, the Veteran received correspondence stating that the Veteran's appeal has been certified to the Board, and that the Board will not be able to take any action on the appeal until the Veteran's videoconference is held. Therefore, no action can be taken at this time regarding the Veteran's claim for service connection for lichen planopilaris. The issue of the low back disability is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record. In the September 2016 remand, the BVA, in part, instructed the AOJ to obtain an addendum opinion from the February 2013 Disability Benefits Questionnaire (DBQ) Spine examiner who had conducted the Veteran's prior VA examination. The February 2013 VA examiner was instructed to specifically consider four pieces of evidence from the Veteran's service treatment record in order to formulate an opinion based on a complete and accurate reflection of the Veteran's claim. The February 2013 VA examiner was instructed to specifically discuss: (1) an October 2002 service treatment record that documented an assessment of the Veteran's low back pain and noted the Veteran's complaint of low back pain for the past two weeks; (2) a November 2002 service treatment record that noted the Veteran's physical therapy treatment for low back pain and reported the onset of the low back pain; (3) another November 2002 service treatment record that diagnosed the Veteran with "lumbar strain/mechanical LBP;" and (4) a January 2003 service treatment record that noted a diagnosis of lumbago. In August 2017, the Veteran was afforded a Back (Thoracolumbar Spine) Conditions DBQ. Here, the VA examiner continued the Veteran's lumbosacral strain diagnosis from 2011 and performed range of motion, functional limitation, and muscle strength testing on the Veteran's back. The VA examiner issued an opinion that the low back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because "while the Veteran did sustain the low back strain during service, there was no recent documentation of record that there has been continued care and treatment of the initial low back strain. A nexus is not established." See August 2017 Medical Opinion - DBQ. The Board notes that the VA examiner did not discuss any of the four service treatment record notes, as instructed, and upon remand, all four service treatment record notations must be specifically discussed to ensure that the February 2013 VA examination opinion was based on an accurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the case is REMANDED for the following action: 1. Arrange for the August 2017 DBQ examiner to provide an addendum opinion. In rendering his/her opinion as to whether the diagnosed low back condition is at least as likely as not related to the Veteran's service, the examiner is specifically asked to discuss the following evidence: (a) The Veteran's October 2002 service treatment record containing an assessment of her low back pain and noting the Veteran's complain of low back pain for the past two weeks; (b) The Veteran's November 2002 service treatment record noting that the Veteran underwent a physical therapy session for her lower back pain and her reported onset of the low back pain; (c) An additional November 2002 service treatment record noting a diagnosis of "lumbar strain/mechanical LBP;" and (d) The Veteran's January 2003 service treatment record reflecting a diagnosis of lumbago. The examiner should consider any allegations of continuity of symptomatology. The rationale for all opinions offered should be provided. 2. Readjudicate the appeal. The Veteran 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). _________________________________________________ R. FEINBERG 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).