Citation Nr: 1807857 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-28 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1975 to December 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2017 the Veteran was afforded a videoconference hearing before the Board, and the transcript has been associated with the record. New evidence was received along with a waiver of review by the agency of original jurisdiction. 38 C.F.R. §§ 19.37, 20.1304 (2017). During his Board hearing, the Veteran expressed interest in raising the issue of entitlement to service connection for erectile dysfunction secondary to his low back disability. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The Agency of Original Jurisdiction (AOJ) is hereby advised that the Veteran has articulated an intent to file a claim, and should take appropriate action. The record shows that the Veteran has been variously diagnosed with degenerative joint disease, and low back strain in regards to the low back. Therefore, VA must address whether service connection is warranted for a lumbar spine disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to service connection for a low back disability, with instances of pain beginning in service and continuing since. In addition, the Veteran reported carrying heavy rucksacks with equipment such as the radio and weaponry, and driving numerous vehicles, to include jeeps and personnel carriers, all of which led to back pain and symptomatology. The Veteran was afforded a July 2013 VA examination for his back; however, the Board finds that the opinion is inadequate. Specifically, the examiner opined that it was less likely than not that the Veteran's low back condition (strain) was incurred in or caused by his military service. The examiner reasoned that the Veteran had been treated for low back spasms once in 1983, and there were no other entries for examination, diagnosis or treatment for back conditions in the service treatment records. The Board notes that this is a factually inaccurate basis to support the reasoning. See e.g. Service Treatment Record, October 31, 1980, showing Veteran reported coccyx pain and muscle spasms were assessed. Otherwise, the examiner just restated the Veteran's history that he had been treated for low back pain with non-steroidal-anti-inflammatories and muscle relaxants; that radiologic testing showed scoliosis and degenerative joint disease of the lumbar spine; and, that the Veteran continued to work at a distribution center. The examiner did not provide any analysis with this restatement, and as such, the reasoning provided fails to support the opinion. In addition, the examiner failed to adequately consider the Veteran's claims of continuity of symptomatology and/or treatment for his conditions or to specify whether the Veteran had arthritis of the lumbar spine. In September 2017 the Veteran sought treatment for back pain, and provided a copy of a treatment record documenting back pain in 1980. The provider opined that it is at least as likely as not the Veteran's chronic back pain is a result of military service. A rationale was not provided to support this opinion, and it appears that the examiner did not have access to the Veteran's treatment records pertaining to his back. The Board finds another VA examination to determine the nature and etiology of the Veteran's low back disability is necessary. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner is requested to specifically indicate whether the Veteran has arthritis of the lumbar spine. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. Copies of all pertinent records in the Veteran's electronic claims file (ECF), or in the alternative, access to the ECF, must be made available to the examiner for review. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any lumbar spine disability. All clinically indicated testing and consultations should be completed and all pertinent symptomatology and findings should be reported in detail. Following a review of the claims file and physical examination of the Veteran, the examiner should provide current diagnoses for the low back, (and specify whether the Veteran has arthritis of the spine or not) and then render an opinion as to whether it is at least as likely as not that the Veteran's low back disability had its onset or is otherwise etiologically related to service or any incident therein, to include carrying a heavy rucksack and equipment, and getting in and out of numerous vehicles. The examiner should specifically discuss the October 31, 1980 entry of coccyx pain and muscle spasm, as well as the 1983 entry of low back spasms. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A complete rationale for any opinion expressed should be provided. The examiner is notified that the Veteran is competent to report symptomatology observable by a layperson. The examiner is advised that she/he must discuss the Veteran's self-reported history, and that the absence of corroborating clinical records may not be the determinative factor. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 2. The AOJ should review the examination report to ensure that it is in compliance with this remand. Ensure that the examiner documents consideration of the ECF. If any report is deficient in any manner, implement corrective procedures at once. Then readjudicate the claim, considering all evidence of record. 3. If the benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time should be allowed for a response. The appellant 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 (West 2012). (CONTINUED ON NEXT PAGE) _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).