Citation Nr: 18146227 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-42 685A DATE: October 31, 2018 REMANDED Service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1960 to September 1962. In an October 2017 decision, the Board of Veterans’ Appeals (Board) denied service connection for a back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Joint Motion for Partial Remand (Joint Motion), the parties agreed that the Board failed to fulfill the duty to assist as required by 38 U.S.C. § 5103A by relying on an inadequate medical opinion. Specifically, that the April 2013 Department of Veterans Affairs (VA) medical examiner did not provide an adequate opinion and rationale addressing whether the Veteran’s current low back disorders are caused by or a result of an in-service injury. The parties agreed that the Board shall obtain a new VA medical opinion to address the etiology of the Veteran’s current back disability and whether it is related to the in-service injury. In a July 2018 Order the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. The Veteran asserts that his current back disability is related to active service. He contends that he fell in-service aboard the U.S.S. Valley Forge in August 1961 and has had back pain since. He asserts that he fell twenty-five or thirty feet and was knocked unconscious when he struck another vessel. He asserts that he was sent to the ship sick bay and was released the next day and put on light duty work for a week. See February 2012 Statement. In lay statements the Veteran asserted that he worked in sales or management after service and has not done manual labor. See May 2013 Notice of Disagreement. The Veteran contends that doctors have told him that his back pain is due to a strain and that his back pain could have been due to a fall. See January 2012 Statement. Service records reflect that the Veteran was injured while serving aboard the U.S.S. Valley Forge. An August 1961 Deck Log reflects that the Veteran was wrapping line around mooring line when he slipped and fell from the line and struck the side of a whale boat in the water alongside the ship. The record reflects that the Veteran sustained abrasion and contusion of the glutial fold and right thigh as a result and he was treated by the dispensary. In June 1967 the Veteran underwent VA examination. The examiner recorded the Veteran’s history of falling overboard in service and complaints of back pain, and that he had broken his tail bone and continued to experience pain when sitting. A June 1967 treatment report reflects that the Veteran had an old displaced fracture of the end of the coccyx. During the April 2013 VA examination, the examiner recorded the history of the Veteran’s back complaints and treatment and diagnosed degeneration of the lumbar or lumbosacral intervertebral disc without myelopathy. She opined that the Veteran’s current back disability is not related to the in-service fall. Private treatment reports reflect that the Veteran has been treated for back pain and radicular symptoms in his lower extremities. In December 1990 he underwent back surgery. After surgery he was diagnosed with L4-L5 spondylolisthesis and spinal stenosis, cholelithiasis. A May 2008 treatment report reflects that x-ray images showed post-surgical changes, bilateral posterior lateral fusion, and midline decompression, as well as L4-L5 spondylolisthesis. To support his claim the Veteran submitted articles about the symptoms and causes of spondylolisthesis, spinal stenosis, and gluteal sulcus, as well as a spine diagram; he asserts that his spinal disc problem is due to the fall during military service. Accordingly, in light of the Joint Motion, remand is necessary to obtain a medical opinion to determine whether the Veteran’s current back disability is related to his active duty service. Updated treatment records should also be sought on remand. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his back claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the Veteran should be afforded a VA spine examination to determine the nature of any current back disability, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability is related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the following: (a.) An August 1961 Deck Log that reflects that the Veteran slipped and fell and struck the side of a whale boat sustaining an abrasion and contusion of the glutial fold and right thigh as a result, and that he was treated by the dispensary. (b.) A June 1967 treatment reported that reflects the Veteran had an old displaced fracture of the end of the coccyx. (c.) The June 1967 VA examination that reflects the Veteran complained of back pain and pain when sitting and his reports of a broken tail bone. (d.) Private treatment reports that reflect that the Veteran underwent surgery in December 1990 and was diagnosed with L4-L5 spondylolisthesis and spinal stenosis, cholelithiasis. A May 2008 treatment report that reflects that x-ray images showed post-surgical changes, bilateral posterior lateral fusion, and midline decompression, as well as L4-L5 spondylolisthesis. (e.) The April 2013 VA examination report. (f.) The articles the Veteran submitted regarding the symptoms and causes of spondylolisthesis, spinal stenosis, and gluteal sulcus and the Veteran’s lay assertions that he has had back pain since his fall during military service, and that doctors have told him that his back pain was due to a strain and that his pain could have been caused by a fall. A complete rationale for all opinions offered is requested as the Board is precluded from making any medical findings. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis or post-service treatment, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current back disability is not related to service. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel