Citation Nr: 1803832 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-00 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and August 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for a lumbar spine disability. He indicated in a March 2011 notice of disagreement that he has been diagnosed with degenerative joint disease, as due to osteoarthritis; and that during active service, at some time between September 1986 and September 1991, a physician informed him that he was in the beginning stages of arthritis. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claim can be adjudicated on the merits. Service treatment records (STRs) reveal that, in January 1988, the Veteran complained of back problems. He noted back problems for years, but during this visit, he had pain in the areas of L1-L3 and in the lower rib cage, which radiated to the abdomen. In February 1988, the Veteran had a follow-up appointment for his back pain and noted continued, occasional pain. In an October 1990 medical history report, the Veteran noted recurrent back pain, and the examiner indicated in December 1990 "back strain, 1970, secondary to driving long distance in cramped space." The Veteran was afforded a spine VA examination in March 2010. The examiner indicated that a lumbosacral spine X-ray from September 2009 revealed a diagnosis of degenerative disc disease. The examiner noted that the Veteran's STRs indicated February 1988 and July 1989 in-service complaints of lower back pain; but the examiner determined that it would be impossible to say without mere speculation whether the Veteran's degenerative disc disease is related to his in-service lower back pain reports. The examiner provided no rationale or explanation as to why an opinion could not be provided without mere speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner must provide a rationale as to why a requested opinion could not be provided). VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. at 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). As there have been no other VA examinations or opinions since March 2010, a new VA back examination and opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding VA or private treatment records relevant to his claimed disability. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained. 2. After obtaining any outstanding records, the Veteran should be afforded a new VA examination, provided by a new examiner, regarding the etiology of his lumbar spine disability. The examiner should note in the report that the entire electronic claims file has been reviewed, to include any new records recently obtained and this Remand. Following examination of the Veteran and a review of the claims file, the examiner should offer the following opinions: a) Does the Veteran have a current lumbar spine disability? Please address the March 2010 diagnosis of degenerative disk disease of the lumbosacral spine. b) Is it at least as likely as not (50 percent probability or greater) that the currently diagnosed lumbar spine disability had its onset in, or is otherwise related to any incident of his service, to include his in-service reports of back pain in January and February 1988, and October 1990? Please consider his report of being told, at some point between 1986 and 1991, that he had "the beginnings of arthritis" and having had chronic pain since that time. All opinions must be supported by a clear rationale and reasoning behind the opinion that include consideration of the Veteran's statements, the particulars of his medical history and relevant medical literature. 3. After completing the above actions, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. 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 (West 2012). _________________________________________________ V. CHIAPPETTA 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).