Citation Nr: 1803540 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 11-21 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to the service-connected cervical spine disability. ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to March 1972, and from January 1991 to July 1991. This matter come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran previously appointed AMVETS as his representative. In an August 2017 letter, prior to re-certification of the Veteran's appeal to the Board later in November 2017, AMVETS submitted a letter to the RO withdrawing its representation. The Veteran was sent a copy of this letter. The Board finds that AMVETS has properly revoked representation. See 38 C.F.R. § 14.631 (c) (2017). To date, the Veteran has not submitted documentation appointing a new representative; as such, the Board finds that he wishes to be unrepresented in this appeal. 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 he injured his lumbar spine during service. Specifically, the Veteran has consistently reported that, while serving in Desert Storm during a scud attach, he jumped into a bunker and immediately experienced a sharp pain in his neck and arm and reported that his leg was numb. See June 1995 DRO hearing transcript at pg. 5. The Board also notes that the Veteran has been granted service connection for a cervical spine disability based on this in-service injury. See September 1995 decision. The Veteran was afforded a VA spine (cervical and thoracolumbar) examination in September 2008. At that time, the Veteran reported neck and back problems since 1991 when he was injured after jumping into a 4 foot bunker. An MRI at the time of evaluation indicated that the Veteran had multilevel degenerative disc disease and had previously undergone a laminectomy at L5-5 on the right side in 2003. In March 2009, the same examiner form the September 2008 examination opined that the Veteran's thoracolumbar spine disorder with radiculopathy was not related to the in-service injury. In support of this opinion, the examiner stated that there was not sufficient evidence to indicated that the Veteran sought medical attention while in service or subsequently thereafter. The Board finds the March 2009 VA medical opinion to be inadequate. The Veteran has consistently reported having leg pain and back pain since the in-service injury. Despite the Veteran's reports, it appears that the VA examiner provided a negative nexus opinion based solely on the lack of documentation of a back disorder in service treatment records and immediately following service separation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). For these reasons, the Board finds that a new VA examination is warranted to assist in determining whether the Veteran's currently diagnosed lumbar spine disorder first manifested in service or is otherwise related to service. The Board also notes that the Veteran underwent a cervical spine discectomy in 1998. In 2003, the Veteran had lumbar fusion surgery in 2003. The Veteran has reported leg pain since the in-service injury and continued, worsening back pain. In a September 2011 VA physical therapy note, it was indicated that the Veteran had recently developed scoliosis since a prior study in December 2000. The Board finds that this evidence may be suggestive of some aggravation of the lumbar spine disability. For these reasons, the Board finds that the examiner should also address whether the Veteran's currently diagnosed lumbar spine disorder is either caused or aggravated by the service-connected cervical spine disability. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA thoracolumbar examination. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, conducting a physical examination, and any other testing deemed necessary, the examiner should render the following opinions: (a) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) that the Veteran's currently diagnosed thoracolumbar spine disorder first manifested in service, was incurred in service, or is otherwise related to his military service? (the examiner should assume that the Veteran injured his neck and back after jumping in a foxhole in 1991). (b) If the response to section (a) is negative, the examiner should address whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) that the Veteran's currently diagnosed thoracolumbar spine disorder is either caused or aggravated by his service-connected cervical spine disability. (NOTE: the examiner should address the September 2011 VA physical therapy note where it was indicated that the Veteran had recently developed scoliosis since a prior study in December 2000). Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must provide a complete rationale for any opinion expressed. 2. Thereafter, readjudicate the Veteran's issue on appeal. If the claim remains denied, provide the Veteran a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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). _________________________________________________ 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).