Citation Nr: 1801101 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-09 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lower back disability. 2. Entitlement to service connection for a bilateral lower extremity disorder, to include a nerve disorder as secondary to a lower back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for "lower back strain with bilateral lower extremity paresthesias." The Board has recharacterized the claims on appeal, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009) (noting that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After reviewing the record, the Board finds that additional evidentiary development is necessary prior to final adjudication of the claims on appeal. See 38 C.F.R. § 19.9. Outstanding Records The Veteran has indicated, and the record reflects, that he receives treatment at VA medical facilities. On review, however, the most recent VA medical records associated with the claims file date from May 2011. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2) (2012). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Here, as the missing records are potentially relevant to the claims on appeal, the Board finds that a remand is required in order to obtain them. See 38 U.S.C. § 5103A; Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Service Connection Claims The Veteran contends that his current lower back disability developed as a result of injuries sustained in a helicopter crash. Service treatment records confirm that he was involved in a helicopter crash while serving in Vietnam in September 1968. Thereafter, he reported recurrent low back pain, as noted in his November 1970 separation examination and report of medical history. In June 2011, he was afforded a VA spine examination. The report indicates that the examiner acknowledged the Veteran was involved in a helicopter crash; however, the examiner noted that "he did not suffer from any fractures, nor were his injuries severe enough to require surgery." Thus, the examiner determined that it was less likely as not that service connection was warranted. The Board finds that an addendum medical opinion is needed to clarify the nature and etiology of the Veteran's lower back disability. Initially, it is unclear as to why the absence of fractures or surgery in service should defeat the Veteran's claim, as opined by the June 2011 VA examiner. Moreover, the examiner's opinion does not meaningfully consider the Veteran's post-crash reports of back pain in service or the private medical records submitted by the Veteran documenting chronic back pain. On remand, the reviewing examiner is also asked to address the 2012 opinion by Paul J. Yocom finding a nexus between the Veteran's in-service injury and his current symptoms. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on incorrect factual premises is not probative). The Veteran also contends that he has a bilateral lower extremity disorder, to include a nerve disorder, which was caused or aggravated by his lower back disability. This claim is inextricably intertwined with the claim for service connection discussed above. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this claim must be remanded as well. On remand, if necessary, a VA examination should be afforded to determine the etiology of the claimed symptoms, to include whether such were caused or aggravated by the Veteran's lower back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records pertaining to the Veteran for the period from May 2011 to the present. 2. Forward the claims file to the appropriate specialist for an addendum regarding the claim for service connection for a lower back disability. After reviewing the entire record, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disability was incurred due to an injury or event in service, to include the documented September 1968 helicopter crash. In formulating the requested opinion, the examiner should specifically discuss the following: * September 1968 personnel records documenting the Veteran's involvement in a helicopter crash * In-service reports of back pain, to include a July 1970 report of "ice massage" to the lumbar area and a November 1970 report of medical history documenting recurrent back pain and "occasional back discomfort treated as pulled muscle" * A September 1974 report of medical history documenting recurrent back pain * Post-service private treatment notes documenting chronic back pain, to include November 2004 MRI results indicating stenosis * The 2012 opinion from Dr. Yocom describing the Veteran's current back symptomatology and noting a link between these symptoms and his service 3. After directives (1) and (2) have been completed, and if indicated, schedule the Veteran for a VA examination regarding his claim for a bilateral lower extremity disorder, to include a nerve disorder as secondary to his lower back disability. The examiner should clarify any pertinent diagnoses and opine as to whether it is at least as likely as not (50 percent probability or more) that any lower extremity symptoms, to include nerve damage, were caused or aggravated by the Veteran's lower back disability. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 4. After completing all indicated development, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). These claims 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). _________________________________________________ YVETTE R. WHITE 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).