Citation Nr: 1807498 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-25 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Brian S. Wayson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from October 1982 to October 1986. This appeal to the Board of Veterans' Appeals (Board) is from a September 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In April 2017, the Veteran had a personal hearing before the undersigned VLJ. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development, as described below. REMAND The Veteran's claim is not ready for adjudication on the merits. First, the Board notes the Veteran testified that he thought he mentioned having back pain at his separation examination. The STRs currently of record do not contain a separation examination. On remand, additional effort shall be made to locate any additional existing records from service. Second, the Board agrees with the Veteran's arguments that the current VA examination, from August 2011, is inadequate for adjudication. That VA examiner did not appear to consider the Veteran's statements concerning having persistent low back pain since service, while instead basing his rendered negative opinion on the Veteran's statements concerning having injuries following his separation. On remand, an updated examination will be conducted. Finally, updated VA treatment records shall be associated with the file. Accordingly, the case is REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Make an attempt to locate any additional STRs, including additional records of inpatient (clinical) treatment, that may not have yet been associated with the claims file. He reported being treated at both a German hospital and a hospital on base. Also make an attempt to locate his service personnel records. 3. Following steps 1 and 2, and after waiting an appropriate time for response, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (at least 50 percent probability) that any lumbar spine disability is related to the Veteran's service. The examiner is asked to review the file prior to the examination. The Veteran was involved in a motor vehicle accident (MVA) in June 1984 (during service), for which he was hospitalized at least four days. At the time of the injury, he complained of low back pain, but the records currently available show that his back was not treated or diagnosed. Instead he was diagnosed with a kidney contusion. The remaining currently available records do not contain any further complaints or treatment for the back, which, the examiner is advised, is not dispositive of the question. The Veteran testified that after the MVA, he did go back to duty, but that he continued to have trouble with his back following the accident. He said that after a few days he had difficulty bending over to tie his shoes, which his wife helped him with. He said that he got some pain pills for it and moved on, as he was very concerned about the judgments that other people (including his family) would make about him if he were to complain about his pain. He reported that his MOS was in carpentry and masonry, jobs that involved heavy lifting and hard work. He testified to working with logs building bridges and other structures. He said that he was able to do his work, but that he had pain, especially when working on bigger jobs. He said that he was young and strong and kept working, dealing with the pain. He asserts that the injury he had in service increased over time due to the heavy work that he did in service, and continued to increase following separation to his current diagnosis. He separated from service in 1986, and continued to work in construction and maintenance fields until approximately 1993, when he could no longer work through the pain. He reports that he entered into a vocational rehabilitation program through the state (for which he testified the records are unavailable), and was told at that time that he had a preexisting back injury and diagnosis of spinal stenosis. He reports that he had more injuries after that, and was denied workers compensation due to having a preexisting injury. He reports that the only injury that he can think of that would preexist his vocational rehabilitation was the MVA in service, which he attributed as the cause of his back trouble over the years. The August 2011 VA examiner does not appear to consider the Veteran's statements regarding his persistent pain, although he did comment without further explanation that the Veteran "was not clear" that the pain suffered in service was the same as the pain he currently had. The examiner is therefore asked to elicit from the Veteran a detailed history of his injury and the symptoms thereafter and over the years. The examiner is also asked to review the transcript from the April 2017 hearing where the Veteran described his symptoms over the years. After review of the evidence and the examination, including any diagnostic testing deemed appropriate, the examiner is asked whether it is as likely as not (at least 50 percent probability) that the Veteran's current lumbar spine disabilities are related to the MVA in service, or to his duty MOS in service, or to both. All opinions are to be provided with explanation. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).