Citation Nr: 1803683 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 17-07 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a lumbar spine disability with degenerative disc disease and degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to August 1978, and from December 1978 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In November 2017, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is claiming entitlement to service connection for a lumbar back disability with degenerative disc disease and degenerative joint disease. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical examination report must contain clear conclusions with supporting data, along with a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the February 2016 examination report did not provide adequate explanation and will remand for a clarifying opinion. The February 2016 VA examiner described her diagnosis of the Veteran's lumbar back disability as mild degenerative disc disease and degenerative joint disease of the lumbar spine at L4-L5 and L5-S1. Less than a year later, the Veteran was hospitalized for 8 weeks total treatment and diagnosed with discitis L3-L4 with perispinal phlegm and left paraspinal abscess, an apparently different condition than noted in the February 2016 VA examination. The Veteran's discharge diagnosis was "L4/5 diskitis with osteomyelitis and phlegmon or teeny paraspinal psoas abscess," and continues to receive follow-on care. Currently, medical records exist in the Veteran's file for up to February 2017. The February 2016 VA examiner provided a negative opinion on direct service connection, stating that her diagnosis of "mild DJD thoracic spine, mild DDD & DJD L4-5, L5-S1 was less likely than not incurred in or caused by the claimed parachute badge/jumps and/or in-service injury, event or illness. Her rationale was the Veteran only cited low back pain once in his active service medical records and she speculated the Veteran should have had "some sort of continuity" in his service treatment records. No mention was made of the Veteran's reported history regarding his accident while rappelling out of a UH-1N helicopter, dropping 80-120 feet to the ground, or his motor vehicle pool incident, both while on active service, in addition to his 88 jumps as an Army paratrooper and Ranger assigned to the 1st Battalion, 75th Ranger Regiment. The Board finds that the Veteran's in-service incidents and service as a paratrooper, described in both lay statements and as part of his hearing testimony, constitute satisfaction for the second prong of the requirements of service connection, that of an in-service incident, injury, or disease. An additional opinion is necessary to address the lay and medical evidence regarding the claim and in light of new medical evidence regarding the back disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran, especially those records following the January-February 2017 hospitalization for his lumbar back disability. 2. Obtain an addendum opinion from a physician, a different examiner than the one who conducted the February 2016 VA examination, for a supplemental medical opinion to address the nature and etiology of the veteran's lumbar spine disability. The Veteran need not be scheduled for another VA medical examination unless needed to provide the requested medical opinion. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's lumbar spine disability had its onset in service or related to any event, injury or disease in service. For purposes of the examination, accept as true that the Veteran had an in-service event or injury related to the back during service. The examiner should address the Veteran's reported injuries during service as noted in the February 2016 VA examination report. The examiner making the addendum opinion is reminded to take into account the Veteran's own statements regarding the onset and history of his disability. The examiner should be mindful that, in general, a disability may be connected to service even in the absence of documented treatment for the claimed disability. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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 (West 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).