Citation Nr: 1805033 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-16 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from February 1979 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge in a January 2016 videoconference hearing. A transcript of this hearing has been associated with the record. Thereafter, the Board remanded the claim in May 2016. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, yet another remand is necessary to obtain an adequate examination in that complies with the Board's previous remand. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA previously provided the Veteran an examination in July 2012. The examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by a basketball injury in 1979. The examiner noted that muscle spasms and back strains, the diagnoses during the Veteran's active service, do not lead to arthritis of the spine. As found by the Board in May 2016, this examination is inadequate for adjudication purposes. First, the Veteran has stated that he has experienced low back symptoms since his active service. Any opinion rendered should account for the Veteran's lay statements regarding his claimed symptoms. The Board notes that the Veteran's complaints were listed in the medical history portion of the examination report. However, it isn't clear that these statements were considered before the examiner rendered an opinion. Second, the July 2012 VA examiner failed to discuss the full extent of the STRs. The examiner noted that the Veteran suffered a low back strain during his active duty. However, this account does not acknowledge the other STRs, including a September 1979 assessment of the Veteran's low back that documents recently obtained radiographic images being examined, revealing findings that would suggest the possibility of tenderness in the abductor mechanism as well as some suggestion of sacroiliac symptoms. On remand, an examination should be obtained that accounts for all in-service treatment for the Veteran's low back. Third, since that opinion was provided, the Veteran submitted August and September 2012 private opinions which the examiner would not have been able to consider. In the August 2012 opinion, Dr. FCU, after reviewing the Veteran's pre-enlistment examination, service treatment records, and report of medical history prior to separation, opined that the Veteran's low back disorder was as likely as not to have begun during his active military service. In the September 2012 opinion, Dr. JTH opined that the Veteran's low back injury during his military service could have predisposed or at least more likely than not contributed to some of the Veteran's current and continued symptoms of chronic low back pain. An addendum VA opinion was obtained in May 2013 that addressed these private opinions. The examiner explained that the private opinions did not explain the 20 year gap between the Veteran's service and when he first started seeking treatment for his back. Nonetheless, the Veteran's lay statements were not addressed and the STRs remained unaddressed. The Board thus found that the 2013 opinion is inadequate because it summarily dismisses the private opinions of record without adequately addressing them. Significantly, the September 2012 private opinion by Dr. JTH found that the Veteran's in-service back injury predisposed or at least more likely than not contributed to some of the Veteran's current and continued symptoms of chronic low back pain. The May 2013 VA opinion dismissed the private opinions received in 2012 because they did not account for the temporal gap between the Veteran's service and his first documented post-service treatment in 1996. However, the private opinion from Dr. JTH does not appear to presuppose chronic symptomatology. Rather, it supports a finding that the Veteran's in-service back injury predisposed or contributed to current symptoms. The Board therefore remanded the claim in May 2016, in part, to obtain a VA examination to determine the etiology of the Veteran's back disorder. The Board directed that the VA examination address the following: 1) the Veteran's lay statements describing low back symptoms since his military service; 2) all service treatment records documenting low back treatment; 3) the August and September 2012 private medical opinions that causally link the current low back disorder to military service; and 4) the July 2012 VA examination report and May 2013 addendum opinion. VA provided an examination in October 2016. The Veteran reported low back pain that began in July 1979 following a basketball game on base. X-rays were negative at that time. However, the Veteran continued to have back pain. The examiner opined that the Veteran's back arthritis was less likely than not incurred in or caused by his service. The examiner explained that during service, back symptoms were acute only. As there was no evidence of chronicity of care, a nexus has not been established. In a February 2017 addendum opinion, the examiner repeated her opinion. The examiner indicated that the Veteran first sought treatment for a low back condition in June 1979 related to a basketball injury. Between then and October 1979, the Veteran had multiple visits for treatment, including an orthopedic consult. The Veteran had reported feeling better thereafter and returned to playing sports activities without pain. The May 1980 report of medical examination indicated that the Veteran had occasional low back pain but was not on medications on that time. The medical records were silent for treatment for a back condition between service and 1996, and again not until 2003. The examiner found that the Veteran's lay statements and subsequent medical opinions showing causality failed to explain the 17 year gap between the first complaint of low back symptoms in 1979 and 1996. First, this opinion is inadequate because it does not adequately account for the Veteran's lay statements regarding continuity of back symptomatology since his military service. In a May 2017 statement, in answering the examiner's explanation in the February 2016 addendum opinion, the Veteran reported that he was told to take over the counter medications for his low back pain. The medications reportedly only took the edge off the pain, which the Veteran dealt with until the pain progressed to where visiting the doctor was necessary. Also, in a November 2017 statement, the Veteran's representative referred to a claim for service connection for a back disorder that was submitted in July 1982. This claim, dated after the Veteran separated from service in 1980, undermines the February 2017 VA examiner's explanation that the Veteran's statements did not explain the 17 year gap between the Veteran's service and when he presented for back treatment in 1996. At the very least, the Veteran's 1982 claim undermines the examiner's rationale. Second, the February 2017 opinion summarily dismissed the private opinions from 2012 because they did not account for the lack of treatment records from 1980 to 1996. However, as noted above, the private opinion from Dr. JTH from September 2012 does not appear to presuppose chronic symptomatology. Rather, it supports a finding that the Veteran's in-service back injury predisposed or contributed to current symptoms. In any event, the Veteran has credibly indicated that he took pain medications for back symptoms during this period. Therefore, the Board finds that remand is appropriate for an adequate opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, arrange for a qualified medical professional to provide an addendum opinion to determine the etiology of the Veteran's low back disorder. The entire claims file must be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder had its onset in, or is otherwise related to, the Veteran's military service. The examiner must specifically address the following: 1) the Veteran's credible lay statements describing low back symptoms since his military service and how he took over-the-counter medications for his low back until he sought clinical treatment; 2) a post-service July 1982 claim for service connection for a back disorder; 3) all service treatment records documenting low back treatment; 4) the August and September 2012 private medical opinions that causally link the current low back disorder to military service; and 5) the July 2012 VA examination report. 4. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).