Citation Nr: 1801393 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-27 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to service connection for radiculopathy of the right leg, to include as secondary to DDD of the lumbar spine. 3. Entitlement to service connection for radiculopathy of the left leg, to include as secondary to DDD of the lumbar spine. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Nichols, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified in October 2017 before the undersigned at a Board hearing held via videoconferencing technology. The hearing transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claims. Specifically, the record contains inadequate VA medical opinions addressing nexus for the lumbar spine disability (see June 2010 VA Examination and November 2012 VA Medical Opinion). To this end, both 2010 and 2012 opinions indicate that it was less likely than not that the Veteran's lumbar spine disability was related to his back injury in service and was instead related to a post service work injury. The 2012 opinion provided no supporting rationale while the 2010 opinion stated that the in-service injury was "self-limiting." A medical examination report or opinion should "contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, a new VA examination must be afforded to the Veteran, and the examiner will be asked to provide an etiological opinion with a reasoned medical explanation that considers the Veteran's statements regarding his back symptoms since service. The opinion must also address secondary service connection for the bilateral radiculopathy. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination with an appropriate specialist to address the current nature and etiology of the Veteran's DDD of the lumbar spine and bilateral radiculopathy of the lower extremities. The electronic claims file must be made available to the examiner for review. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) For each currently diagnosed lumbar spine disability, did it at least as likely as not (i.e., at least equally probable) have its onset directly during the Veteran's service or is it otherwise causally related to any event or circumstance of his service, to include the documented back injury in service? In particular, reconcile the 2010 opinion that the Veteran's in-service back injury was self- limiting with the Veteran's competent reports of having had continued low back pain since that in-service injury. Although a complete review of the record is imperative, attention is called to the following: *The Veteran's military occupational specialty was a sergeant missile crewman in heavy artillery, which involved routine heavy lifting (on average 40 to 50 pounds), climbing, and loading/unloading heavy equipment onto trucks. *An emergency room visit on December 26, 1972 shows complaints of back pain from the cervical to low back region and a diagnosis of a muscle strain in the lower neck and back. The physical examination revealed mild increase in lordosis and kyphosis. The Veteran was referred to physical therapy. See Service Treatment Records. *Between separation from service in 1973 and his first work injury in 1983, the Veteran had continuation of stiffness and soreness in his back, with pain and inability to bend over completely. See February 2013 Decision Review Officer Hearing Transcript at 3-4. *In describing his work fall in 1983, the Veteran stated that his back "gave away" and he fell. He believes his back condition existed prior to 1983 but was not properly diagnosed in the military. See Board Hearing Transcript at 8-9. (b) Is it at least as likely as not that radiculopathy of the right and left legs was caused by the lumbar spine disability? (c) Is it at least as likely as not that radiculopathy of the right and left legs was aggravated by (i.e., permanently made worse) by the lumbar spine disability? Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. In answering these questions, please articulate the reasons supporting all conclusions. Identify what facts and information, whether found in the record or outside the record, support your opinion, and explain how that evidence justifies your opinion. 2. After completing all actions set forth above, readjudicate the claims with consideration of all pertinent evidence. If the benefits sought are not fully granted, furnish a supplemental statement of the case, before the appeal is returned to the Board, if otherwise in order. 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). _________________________________________________ S.B. MAYS 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).