Citation Nr: 18158144 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 13-29 968 DATE: December 18, 2018 REMANDED Service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to April 1983. This appeal is before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). It was remanded by the Board in October 2017. In this case, the Veteran’s service treatment records are unavailable for the period of service from September 1976 to July 1981, as reflected in a July 2013 Formal Finding of Unavailability of Service Treatment Records of the agency of original jurisdiction (AOJ). Where claimant’s service medical records have been destroyed or lost, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). During his August 2016 Board hearing, the Veteran testified that he began having pain in service from carrying full rucks during marches and went to sick call for numbness in the arms and legs, but that they could not find anything wrong. He testified that he had back problems with left leg numbness. On August 1983 VA examination, approximately four months after his period of service, the Veteran reported a history of low back pain beginning about two months prior, which often radiated into his hips and lower extremities. He reported that the pain was not daily, but was frequent and felt like pressure. He also reported that there was no history of any specific injury or operation on the low back. On examination, there was pain on pressure of the back but no spasm, and straight leg raising test was positive at 70 degrees bilaterally. Lumbosacral spine X-rays revealed no fractures. The intervertebral disc spaces appeared normal except for slight narrowing at the L5-S1 interspace, which was noted to possibly be a normal variant. No degenerative changes were present, and the impression was normal lumbosacral spine. In its October 2017 remand, the Board noted that VA treatment records as early as November 2007 reflect a medical history and assessment of chronic low back pain with sciatica, and a November 2012 record reflected that, in light of the Veteran’s low back pain, he was to have a magnetic resonance imaging (MRI) of the lumbar spine. However, there were no subsequent treatment records regarding any MRI findings. The Board thus determined that it was unclear from the record what, if any, lumbar spine disability was currently diagnosed. Given the above, and noting VA’s heightened duties in this case, the Board instructed the AOJ to (1) obtain all outstanding pertinent VA medical records dated from November 2012 to the present regarding the Veteran’s claimed lumbar spine disability, to include results of MRI discussed in a November 2012 VA treatment record, and (2) readjudicate the appeal after completing any other necessary development, to include obtaining a medical nexus opinion if deemed necessary. In accordance with the Board’s remand, the AOJ obtained VA treatment records including January 2013 and February 2017 lumbar spine MRI reports. Both such reports revealed lower lumbar degenerative disc and facet findings seen with lateral recess and foraminal narrowing. However, despite these records, the AOJ did not obtain any medical nexus opinion. The record in this case reflects current lumbar spine pathology, as shown on January 2013 and February 2017 MRI, and, since November 2007, a history of low back pain with sciatica has been noted. Also, the Veteran has reported physical activity affecting his back in service, and during his August 1983 VA examination, approximately four months after discharge, he reported low back pain beginning about two months prior radiating into his lower extremities; lumbar spine X-rays revealed slight narrowing at the L5-S1 interspace; and straight leg raise was positive on physical examination. Given this, and noting again VA’s heightened duties in this case considering the portion of the service treatment records that is missing, the Veteran should be given a VA examination to determine the nature and etiology of any current lumbar spine disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any lumbar spine disorder. After reviewing the claims file, the examiner should determine whether it is at least as likely as not (i.e. a 50 percent probability or more) that any current lumbar spine disorder, to include the lumbar spine pathology shown on January 2013 and February 2017 MRI, is etiologically related to service, including the Veteran’s in-service duties such as carrying full rucks during marches. For purposes of giving this opinion, the examiner should note that the service treatment records are unavailable for the period of service from September 1976 to July 1981. The examiner should also note the August 1983 VA examination, approximately four months after discharge, where the Veteran reported low back pain beginning about two months prior radiating into his lower extremities; lumbar spine X-rays revealed slight narrowing at the L5-S1 interspace; and straight leg raise was positive on physical examination. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After completing the above and any other necessary development, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel