Citation Nr: 1806280 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-08 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded this case in December 2013 and June 2017 for further development. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in March 2013. A transcript is of record. The VLJ who held the hearing is no longer employed by the Board. The Veteran was provided an opportunity to request another hearing. By correspondence dated in February 2017 and October 2017, the Veteran indicated that he did not wish to appear at another hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the delay, but this claim must be remanded again for further development, as specified below. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. A new VA opinion must be obtained. The Board remanded this claim in June 2017 for a VA examination and opinion. In the June 2017 VA examination report, the examiner stated that an opinion could not be provided without resort to mere speculation. However, no explanation was provided other than the fact that the service treatment records do not document the Veteran's reported in-service back injury, and that a March 2004 private treatment record reflects that the Veteran had an onset of back pain two months earlier, without mention of a service-related injury. This is not sufficient explanation for the examiner's stated inability to render an opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.") Although the service treatment records do not show an injury to the back, they do show that in July 1985, the Veteran complained of "stabbing" low back pain "migrating" into both legs in conjunction with flu symptoms. The Veteran was seen for follow up three days later, at which time he reported feeling much better. He still had some body aches, but they had decreased significantly. There is no mention of low back pain in this record. The Veteran was diagnosed with "oropharyngitis, recovering." The June 2017 VA examiner did not discuss this record, the fact that the February 1987 separation examination report shows that the Veteran's spine was clinically evaluated as normal, the fact that the Veteran denied a history of recurrent back pain in the report of medical history at separation, or the fact that an August 1988 Army Reserve enlistment examination, as well as an August 1988 report of medical history, again respectively show that the Veteran's spine was evaluated as normal, and that he denied a history of recurrent back pain. If a VA examiner still concludes that an opinion cannot be provided without resort to mere speculation, this must be supported by a specific explanation that discusses this evidence, and discusses what data or information is missing that would be necessary to render the opinion. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). The January 2012 statement of the case (SOC) reflects that a VA medical opinion was provided in January 2012. The Board is unable to locate a copy of that opinion in the claims file. On remand, the AOJ must make appropriate efforts to obtain the opinion and associate it with the file. The Veteran's outstanding VA treatment records should also be obtained. There are no VA treatment records in the file dated after August 2008. The June 2017 VA examination report discusses some recent VA treatment records dated in 2016. Accordingly, any outstanding VA treatment records dated from August 2008 forward must be added to the file. The Veteran's service personnel records should also be obtained and added to the file, in case they may provide further information or evidence regarding his reported back injury during service. Accordingly, the case is REMANDED for the following action: 1. Make appropriate efforts to obtain the Veteran's service personnel records and add them to the claims file. 2. Add to the claims file all outstanding VA treatment records dated since August 2008. 3. Add to the claims file the January 2012 VA opinion (referred to in the January 2012 SOC). 4. Then, obtain a new VA medical opinion as to whether it is at least as likely as not (50% or more probability) that the Veteran's current low back pathology, including residuals of a May 2004 lumbar microdiscectomy for a herniated disc, is linked to active service, including the Veteran's complaint of low back pain radiating to both legs noted in the July 1985 service treatment record. If the examiner is unable to provide an opinion under the above standard without resort to speculation, a specific explanation must be provided. The explanation should include a statement as to why the service treatment records and post-service treatment records are not sufficient to render the opinion, including the February 1987 separation examination report and report of medical history, as well as the August 1988 Army Reserve enlistment examination and report of medical history. The examiner must also discuss what data or information is missing that would be necessary to render the requested opinion. 5. Finally, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 (2012). _________________________________________________ P. M. DILORENZO 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).