Citation Nr: 1805859 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-27 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 2000. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In April 2013, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this appeal in June 2014 in order to conduct additional development. For the reasons stated below, there has not been substantial compliance with these orders and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran alleges that he injured his back during his active military service and has experienced low back pain since that time. Post-service medical records show that he has been diagnosed with severe degenerative disc disease. See June 2009 Operative Report. A November 1980 service treatment record reflects that he was diagnosed with a lumbar strain. The Veteran has also provided statements that he experienced back pain in service due to an incident where he fell off an airplane. He has also stated that his back pain has continued since that time. See April 2013 hearing transcript. In support of his claim, he has submitted lay statements from a fellow service member attesting to the Veteran's troubles coping with symptoms of back pain while in service. Pursuant to the prior remand, the Veteran underwent a VA examination for his low back disability in July 2014. He was diagnosed with a lumbosacral strain and L5-S1 radiculopathy with subsequent decompression/fusion and residual sensory L5-S1 radiculopathy and mechanical dysfunction of the low back due to degenerative disc disease and degenerative joint disease. The VA examiner concluded it was less likely than not that the Veteran's current condition was service-connected. In support of this conclusion, the examiner stated that the records reflected that the Veteran experienced an in-service fall in 1996. Further, he stated it was "reasonable that he contused/strained his back but then he performed hard work" without a significant report of problems. The examiner noted that the Veteran was discharged in 2000 without documentation of a significant disability to his back and worked in an industry involving crawling and installation until about 2005 when he complained of back and leg pains. The VA examiner then stated that there was not enough medical documentation in the years following the Veteran's in-service fall in 1996 to conclude that his current back condition was either caused by or made worse by the event in service. The Veteran's representative has argued that the opinion is inadequate and the claim should be remanded again. The Board agrees. The July 2014 VA examiner's opinion is inadequate because the examiner based the negative opinion almost exclusively on the absence of continuity of treatment since service. It is continuity of symptomatology, rather than continuity of treatment, that is important. An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notably, the VA examiner failed to address the Veteran's Board testimony stating that he never underwent a retirement physical prior to discharge from active duty service, and he did not complain of his back problems in service due to fear of being moved to an undesirable duty assignment. On remand, the Veteran's claim should be returned to the July 2014 VA examiner for a more responsive opinion on the etiology of the Veteran's low back condition that specifically considers his lay statements concerning the onset and progression of his symptoms and specifically addresses evidence in the record favorable to his claim. Since the claims file is being returned it should be updated to include any outstanding VA treatment records dated since August 2011. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records regarding the Veteran dated since October 2014. If no medical records are available, this fact should be noted in the Veteran's claims file. 2. Then return the claims file to the examiner who conducted the Veteran's July 2014 VA examination (or another appropriate examiner if that examiner is unavailable) for supplemental comment on the etiology of the Veteran's low back condition. The claims file, to include a copy of this Remand, must be made available to the examiner for review prior to the exam. If the examiner determines that an addendum opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Any indicated evaluations, studies, and tests should be conducted. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to address the following question: Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed low back disability had its onset in service or is otherwise related to active duty service? The examiner should provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of his left shoulder problems. In attempting to comment on this determinative issue of causation, the July 2014 VA examiner impermissibly relied on the seeming absence of indication or actual treatment for low back problems for many years following discharge from active duty service, such as would be reflected in the treatment records. The VA examiner also failed to address the Veteran's April 2013 Board testimony stating that he never underwent a retirement physical prior to discharge from active duty service, and he did not complain of his back problems in service due to fear of being moved to an undesirable duty assignment. A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 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. After conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further 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). _________________________________________________ M. E. LARKIN 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).