Citation Nr: 1806614 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-12 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disorder, claimed as lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from January 1972 to December 1973. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). In pertinent part, in a June 2012 decision, the Board reopened and remanded the Veteran's claims of entitlement to service connection for a lumbar spine disorder and a left ankle disorder. In June 2014, the Board denied the Veteran's claims of entitlement to service connection for a lumbar spine disorder and a left ankle disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2015, the Court issued an order that granted a Joint Motion for Remand (Joint Motion) filed by counsel for both parties, which vacated the Board's June 2014 decision and remanded the claims to the Board for action in compliance with the Joint Motion. In a July 2015 decision, the Board again denied the claims of entitlement to service connection for a lumbar spine disorder and a left ankle disorder. The Veteran appealed to the Court, and in an Order dated in October 2016, pursuant to a September 2016 Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board's July 2015 decision as to the issue of entitlement to service connection for a lumbar spine disorder and remanded this issue to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that he has experienced back pain since a fall during service. See April 2008 statement, July 2012 VA examination report. Service treatment records reflect that the Veteran sought treatment for lumbar pain on one occasion during service, in June 1973. According to the service treatment records, the Veteran felt sharp pain in the right lower back while running, which caused him to stop. The assessment was slight muscle spasm bilaterally, diagnosed as acute back pain. No chronic low back disability was indicated. Although the Veteran was seen for various other physical complaints during the remainder of his service, service treatment records do not indicate any further complaints pertaining to the low back. A December 1973 separation examination report notes that examination of the spine was clinically normal. Following service, treatment records are silent as to complaints or findings of low back disability until 2003. At that time, VA treatment providers diagnosed lumbar spine degenerative disc disease. A June 2008 VA MRI study showed small posterior disc bulges at L2-L3 and L3-L4. A July 2012 VA examination report notes the Veteran's history of back spasm in service. The Veteran reported having back pain "on and off over the years" which became chronic. After reviewing the claims file and examining the Veteran, the VA examiner noted current findings of pain, muscle spasm, and mild degenerative changes in the lumbar spine, but opined that it was less likely than not that the Veteran's current lumbar spine disorder was related to a muscle spasm of the back documented in service. Instead, the VA examiner opined that the Veteran's current lumbar spine disorder was more likely related to normal age progression and the Veteran's post-service occupation as a fireman for 16 years. The September 2016 Joint Motion for Partial Remand asserts that the Board failed to provide an adequate statement of reasons and bases for its finding that the July 2012 VA examination was adequate. In this regard, the Joint Motion found that the Board did not sufficiently address the inaccuracies found in the July 2012 VA examination report. The Joint Motion stated that the July 2012 VA examination was inaccurate because the report listed the 1973 in-service diagnosis of muscle spasm, but did not address the 2003 diagnosis of degenerative disc disease of the lumbar spine or the x-ray findings of mild degenerative changes at the July 2012 VA examination. The Joint Motion also found that the July 2012 VA examination report was deficient because the July 2012 VA examiner did not provide a rationale for the opinion that the Veteran's current lumbar spine disorder is most likely due to the Veteran's age or his 16 years of work as a firefighter. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, additional clinical assessment and medical opinion is necessary to adequately address the Joint Motion's contentions regarding the adequacy of the medical evidence pertaining to the Veteran's claim of entitlement to service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claim on appeal for the rating period since July 2015 should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain and associate with the record all VA treatment records for the Veteran dated from July 2015 to the present. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA spine examination to determine the nature and etiology of any lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current lumbar spine disorder(s) and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified lumbar spine disorder(s) is related to any event, illness, or injury during service, including the Veteran's 1973 diagnosis of muscle spasm and acute back pain. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. The VA examiner should discuss the significance, if any, of the 2003 and 2012 x-ray findings of degenerative changes of the lumbar spine, as well as the significance, if any, of the Veteran's age and prior work experience as a firefighter with regard to the diagnosis and etiology of the Veteran's current lumbar spine disorder(s). 3. After completing all indicated development, the RO should readjudicate the claim for service connection of a lumbar spine disorder in light of all the evidence of record. If the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant 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). _________________________________________________ GAYLE E. STROMMEN 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).