Citation Nr: 1808086 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-25 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back condition, to include degenerative disc disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to March 1987 and February 1988 to November 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned in August 2017. A transcript of the hearing is of record. The undersigned held the record open for 30 days to allow the Veteran to submit additional evidence in support of his claim. The Veteran subsequently submitted additional evidence that has been associated with the claims file and considered. 38 U.S.C. § 7105(e) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND The Veteran has asserted that he has a low back condition due to a car accident in service in February 1989. At a February 2011 VA physical therapy rehabilitation consultation, X-ray reports reflected degenerative disc disease (DDD) at L3-L4, L4-L5, and L5-S1 with radicular symptoms. A December 2011 VA examiner diagnosed the Veteran with lumbar degenerative joint disease with sciatica. A February 1989 emergency treatment note indicates the Veteran was in a car accident while waiting to go through the gate to get on post. Service treatment records reflect that the Veteran was treated in the McDonald Army Hospital Center emergency room immediately following the accident. The Veteran had an X-ray of his cervical spine in the emergency room and the examiner noted that upon physical examination, the Veteran's cervical spine and thoracic spine were negative and sensory motor and cerebellar responses were intact. He sought follow up treatment a week later and at that time it was noted that he had lumbosacral strain. At the August 2017 Board hearing, the Veteran testified that after the motor vehicle accident up until his discharge from service, he received physical therapy on-post and received chiropractic care from a civilian chiropractor off-post. The Veteran claims that his low back disability has been a chronic and continuous problem since he left service. The Veteran testified at the August 2017 Board hearing that after discharge from service in 1989 he sought chiropractic treatment for low back pain from various chiropractors until 2010, when he learned he qualified for VA treatment. The Veteran has submitted evidence that he has been in touch with Dr. S., the chiropractor near Pittsburgh, Pennsylvania, who treated him in the mid-1990s. Dr. S. indicated in correspondence submitted by the Veteran after the Board hearing, that she has since retired and asserted that she did treat the Veteran but that all records from the Veteran's treatment have been destroyed. The Veteran has also submitted evidence that he reached out to Houk Chiropractic, a facility in Spokane, Washington, where the Veteran alleges he was treated in the early 2000's. Correspondence with the facility where the Veteran was treated indicates that the treating chiropractor, M.H., is also retired but still connected with the facility. Those records are not presently of record. Therefore, upon remand, the AOJ should attempt to obtain records from Houk Chiropractic or M.H., and any other treatment providers as identified by the Veteran. The evidence reflects that since 2010, the Veteran has sought treatment from the VA for his low back pain. VA treatment records show that the Veteran has consistently complained of low back pain and consistently gives a history of its onset in service and continuation since leaving service. The Veteran underwent a VA back examination in December 2011. The VA examiner provided a current diagnosis upon examination and opined that the Veteran's current back disability was less likely than not related to his injury in service. However, the VA examiner did not consider the Veteran's lay statements that he has experienced back pain since the in-service accident. When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that remand of this issue is now warranted to obtain an adequate medical opinion regarding nexus. As noted above, at the August 2017 Board hearing the Veteran noted that he received physical therapy treatment from the military physicians from the time of the accident until the time of his discharge from service. There are no physical therapy treatment records of record. Therefore, upon remand, they must be obtained (or their unavailability noted for the record, in which case the Veteran must be informed according to appropriate procedures). The most recent VA treatment records are from December 2016. Therefore, any updated pertinent VA records should be obtained and associated with the claims file on remand. Accordingly, the case is REMANDED for the following actions: 1. Make all necessary efforts to secure any in-service physical therapy or chiropractic treatment records, subsequent to his February 1989 motor vehicle accident. 2. With any needed assistance from the Veteran, including securing from him VA Form 21-4142, obtain any identified records from Houk Chiropractic and/or M.H., and any additional private records showing treatment for a low back disability as identified by the Veteran. 3. Obtain and associate with the record all VA treatment records for the Veteran dated from December 2016 to the present. 4. All actions to obtain the records requested in items 1 through 3 should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in accordance with 38 C.F.R. § 3.159(e) (2017). 5. Provide the Veteran with a VA spine examination to assess the nature and etiology of the Veteran's claimed low back disability. The claims file and a copy of this remand must be made available for review in conjunction with the examination. In particular, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current low back disability began in service, was caused by service, or is otherwise related to service, to include the Veteran's reported injury from a motor vehicle accident in February 1989. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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 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). _________________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board 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).