Citation Nr: 1803360 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-05 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disability, to include degenerative arthritis of the cervical, thoracic and lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from July 1972 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned at a June 2015 videoconference hearing. The hearing transcript is of record. In September 2015, the Board found that new and material evidence had been received and reopened the claim for service connection for degenerative arthritis of the cervical, thoracic and lumbar spine. The claim was remanded for further development by the originating agency. The case has been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND In accordance with the Board's September 2015 remand, the Veteran was afforded a VA examination in September 2015. The Veteran reported that everyday training during military service caused his back to hurt. He was treated with cold and restriction of duty. He was discharged not on a medical basis, but due to financial hardship. He did not remember the details of his post-separation treatment. He was a truck driver when he went into the service and continued with his truck driving after he left for about 20 years. He stopped driving because of his back problem. He also reported back pain during post-service employment as a truck driver. He was treated for the pain with pain medication, bed rest and heat, but did not remember the dates of treatment. In 1993 or 1994 he had an MRI and was told that he had a herniated disc. He was put into traction, prescribed pain medication, a TENS unit and exercises. On physical examination, he complained of pain in the middle of the low back that traveled down both legs, along the front of the thighs to the inside legs and ankles. He described a sensation of pain bouncing around. He denied any treatment and refused pain medication and surgery. He also denied any surgery or injections for his low back and denied any pain in the thoracic spine or neck. The examiner noted that X-rays showed severe degenerative joint disease (DJD) at L5-S1 and DJD with spondylolisthesis at L4-5. There were no findings of a thoracic or cervical spine disability. See September 2015 cervical spine and thoracic spine examination reports. The examiner opined that it is less likely than not that the Veteran's low back condition is related to, or was aggravated to a permanent degree by service. In rendering his rationale, the examiner initially noted that the Veteran has L4-5 spondylolisthesis, which is a developmental condition, and thus existed prior to service. This resulted in the back being prone to injury and DJD. The DJD at the L5-S1 level is related to the spondylolisthesis. The examiner also noted that the Veteran was treated in service for back problems several times and thus concluded that his back disability was aggravated by service. However, he noted that on leaving the service, the Veteran resumed his occupation as a truck driver for another 20 years (with back injuries in December 1971 and April 1972), before his back caused him to leave this job. He also noted that the Veteran had occasional back pain from time to time, which is expected in spondylolisthesis. The Board finds that, essentially, the September 2015 examiner found that the Veteran has spondylolisthesis, which is developmental and, therefore, existed prior to service. The examiner also found that, as the Veteran was treated several times in service for back problems, the disability was aggravated by service, but not to a permanent degree. The only rationale he offers for this finding is that the Veteran was able to return to his occupation as a truck driver and work for 20 years before leaving his job due to his back problems. The Board finds this reasoning inadequate. In this regard, the fact that the Veteran was able to work for a number of years following service does not explain why his back disability was not aggravated to a permanent degree, beyond the normal progression of the disease, during active military service. With regard to the other diagnosed low back disability, DJD of the lumbar spine, the examiner noted that the Veteran's pre-existing spondylolisthesis caused the Veteran's back to be prone to injury and the development of DJD. As such, if the Board follows the examiner's reasoning correctly, the Veteran's back injuries in service and subsequent development of DJD were a natural consequence of the pre-existing spondylolisthesis. In fact, the examiner states that the DJD at the L5-S1 level is related to the spondylolisthesis. As such, one could assume that the current DJD is an escalation or aggravation of the pre-existing spondylolisthesis. If this is the case, the examiner did not explain why this aggravation of the pre-existing spondylolisthesis was not permanent and whether it was beyond the natural progression of the disorder. For these reasons, the Board find's the September 2015 examiner's opinion inadequate for evaluation purposes. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new medical opinion as to the etiology of any low back disability is necessary. 38 C.F.R. § 4.2 (2017). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. After undertaking the above development to the extent possible, schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's low back disability. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. All indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed low back disability originated while the Veteran was serving on active duty or is otherwise etiologically related to service. If the examiner finds that the Veteran's low back disability is developmental or congenital, the examiner should state whether the disorder is a defect or a disease. He/she should also provide an opinion as to whether there is clear and unmistakable (obvious or manifest) evidence that the disorder existed prior to the Veteran's active military service, and if so, whether there is clear and unmistakable (obvious or manifest) evidence that it was not aggravated during service beyond the natural progression of the disorder (i.e., there was no increase in underlying disability). The examiner should also discuss the findings from the Veteran's prior VA examination in September 2015, and indicate how it relates to any current findings. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The examiner is advised that the lack of documentation of treatment in service or post service is not a sufficient basis, alone, to make a determination that the Veteran did not have an onset of lumbar pain in service and continuing since service. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ BARBARA B. COPELAND 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).