Citation Nr: 1802467 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-02 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for lumbar disc disease. (The issue of entitlement to an initial compensable disability rating for lumbar strain, entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected back disability, and entitlement to an effective date for the grant of service connection for lumbar strain, prior to July 28, 2010. are adjudicated in a separate decision by the Board of Veterans' Appeals (Board)). REPRESENTATION Appellant represented by: Joseph A. Whitcomb, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to November 1974 This matter is before the Board on appeal of a September 2010 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for lumbar strain, but denied entitlement to service connection for lumbar disc disease. In July 2015, the Board remanded the issue of entitlement to service connection for lumbar disc disease to the AOJ for issuance of a statement of the case (SOC) under Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was provided to the Veteran in December 2016, and the Veteran timely perfected his appeal to the Board. The Veteran testified before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his lumbar spine degenerative disc disease should be service-connected either as directly related to service, or as secondary to his service-connected lumbar strain. The Veteran was provided with a VA examination in August 2012. The examiner noted that the Veteran had only a back strain while in the military and a slight increase in lumbar lordosis, as noted by the in-service June 1974 X-ray. The examiner opined that the disabilities related to the Veteran's post service fall in 2007 were degenerative disc disease of the thoracolumbar spine, vertebral fractures in the thoracolumbar spines, osteoporosis/osteopenia of the lumbar spine, vertebral fractures of the spine suspicious for multiple myeloma, and multiple myeloma. The Veteran submitted a private opinion in May 2015. The private examiner opined that it was at least as likely as not related to an injury, disease, or event occurring during the Veterans military service. He noted that the Veteran's service treatment records demonstrate that he injured his back while in service in 1974. He was eventually released from service secondary to his back pain. The examiner found that the military did not perform any objective studies that would have demonstrated degenerative disc disease or other musculoskeletal injuries. The examiner concluded that, given the Veteran's personal history which is devoid of trauma except for one slip and fall on ice, and the significance of the injury while in the military, it was at least as likely as not that the Veteran's degenerative disc disease and its resultant limitations were incidental to or aggravated by his military service. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA and private opinions provided are inadequate, for the following reasons. The August 2012 VA examiner relied, in part, on reports in the service treatment records that the Veteran's back pain did not radiate to his lower extremities; however, service treatment records also reflect that, on July 17, 1974, the Veteran's straight leg raise test was positive for pain, and on September 12, 1974, the Veteran reported that his back pain radiated down his right leg. In addition, while the examiner attributed the Veteran's degenerative disc disease to his fall in January 2007, the Board notes that imagine studies reflected that, as of January 2007, the Veteran already had severe degenerative disc disease of his lumbar spine, negating the conclusion that his fall caused his lumbar degenerative disc disease. Medical opinions must be based on accurate facts and supported by a fully articulated rationale in order to provide probative evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). As the VA examiner did not address all relevant facts in the record, the opinion is inadequate. The May 2015 private examiner stated that there were no in-service objective studies that would have revealed degenerative disc disease; however, service treatment records included a September 1974 X-ray reflecting a slight increase in lumbar lordosis, but an otherwise normal lumbar spine. As the private examiner did not address all relevant facts in the record, this opinion is inadequate as well. Id. In addition, neither examiner addressed the issue of secondary service connection-whether his lumbar degenerative disc disease was caused or aggravated by his service-connected lumbar strain. As such, on remand, the Veteran should be provided with another examination to address whether his lumbar disc disease is directly related to service, or whether it is secondary to his service-connected lumbar strain. Accordingly, the case is REMANDED for the following action: 1. Update VA treatment records. Thereafter, schedule the Veteran for a VA examination to determine the etiology of his lumbar disc disease. All indicated tests and studies should be conducted. The claims and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should determine whether: (a) It is at least as likely as not (50 percent probability or more) that the Veteran's lumbar disc disease had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service. In so opining, the examiner must address the service treatment records showing that on July 17, 1974, the Veteran's straight leg raise test was positive for pain, and on September 12, 1974, the Veteran reported that his back pain radiated down his right leg; (b) It is at least as likely as not (50 percent probability or more) that the Veteran's lumbar disc disease has been caused (in whole or in part) or aggravated (has undergone a measurable increase in its severity as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected lumbar strain. In so opining, the examiner must review the August 2012 VA examination that attributed the Veteran's degenerative disc disease to his fall in January 2007, but that medical records shows that he already had severe degenerative disc disease on the lumbar spine at the time of the fall. In addition, the examiner should address the possibility that the Veteran's January 2007 fall was caused by his service-connected lumbar strain. If the Veteran's lumbar disc disease has been aggravated by his service-connected lumbar strain, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. Readjudicate the issue on appeal. If the benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 (West 2014). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).