Citation Nr: 1808434 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-27 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD F. Bulger, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1952 to August 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran's June 24, 2004 original claim of entitlement to service connection for a low back disability was denied in a March 2005 rating decision by the Fort Harrison, Montana RO. The Veteran did not perfect a timely appeal of this denial. Pursuant to an informal claim received on October 10, 2013, the matter was reopened and readjudicated, de novo, in the October 2014 rating decision on appeal. However, subsequent thereto, relevant official service department records not previously recognized as in possession of VA in adjudication of the claim, and as such, not previously considered, were acknowledged in April 2016. As such, the RO conducted a de novo review of the June 24, 2004 claim, and denied the claim. See April 2016 Statement of the Case. At any time after the VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c) (2017). As such, the October 2014 rating decision on appeal, and readjudication in April 2016, are deemed to have been pursuant to the June 24, 2004 original claim of entitlement to service connection for a low back disability. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Board must remand this claim to the RO for additional development. The Veteran has not been provided with a VA examination to determine the nature and etiology of his current back disability. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence is on file for the VA to decide the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The elements of McClendon are met, because the evidence demonstrates a current back disability, an in-service diagnosis of chronic lumbosacral strain and back injuries sustained during service, and a reasonable possibility of a relationship between the current back disability and service; the Veteran's April 2015 lay statement indicates that his private medical provider expressed a belief that events in service, including lack of treatment for a back injury in 1953, had a direct impact on his current disability. See Service Treatment Records from July 1952 to August 1954; March 2015 Pinnacle Imaging Center MRI Lumbar Spine Examination Record; April 2015 Letter from Herman E. Hall. The record does not contain a medical opinion identifying relevant diagnoses, to include whether chronic lumbosacral strain is a current diagnosis; providing the etiology of the Veteran's current back disability; and opining whether his current back disability is caused or aggravated by, or otherwise etiologically related to, service. Therefore, a VA examination is required to answer these questions. The Veteran is encouraged to submit a private medical opinion from his treating doctor, Dr. S. J., or any other similarly qualified medical professional, that addresses all current back diagnoses and whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current back disability is caused or aggravated by, or otherwise etiologically related to, his military service. The Board notes that the claims file reflects some confusion in the evidence relating to an earlier claim of service connection for a pilonidal cyst and the evidence relating to the current claim of service connection for a back disability. VA treatment records show that the Veteran had a pilonidal cyst with onset in 1949 after bruising his tailbone. See February 1956 Cheyenne WY VAMC Medical Records. These records establish that, in September 1953, the Veteran's cyst ruptured while riding trucks in Korea, and, at sick call, he was informed that he should wait until he returned to the United States for its surgical removal. Id. In 1956, the Veteran filed a disability claim, C 18 704 094, for the pilonidal cyst, which was denied. The cyst was removed at the Cheyenne VAMC in early 1956. The 1956 cyst disability claim is separate and unrelated to the current back disability claim; therefore, any factual or legal analysis of the current back claim should take care not to conflate these two issues. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain permission and authorization from the Veteran for the release to VA of all private treatment records from Dr. S. J. and the Pinnacle Imaging Center or any other private medical professional treating the Veteran's back condition. Associate all private treatment records with the claims file and document all efforts to obtain private treatment records in the claims file. 2. Obtain any outstanding VA treatment records to ensure that the claims file is updated. 3. After completing the above record development, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's current back disability. The claims file, including a copy of this remand, should be provided to the examiner. All medically indicated tests should be conducted. After examination and review of all of the evidence of record, the examiner is asked to identify each diagnosis of back disability, proximate to and/or during the claim, to include specifically whether chronic lumbosacral strain is a current diagnosis. Then, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that each back diagnosis is caused or aggravated by, or otherwise etiologically related to, his military service. Aggravation is manifest by an increase in the disability beyond its natural progression. Rationale must be provided for the opinion(s) proffered with appropriate medical reasoning and supporting factual evidence. In offering these opinions, the examiner is asked to comment specifically on: (1) the abnormal clinical finding on the Veteran's pre-induction examination in July 1952 of scoliosis of the spine, and notation of occasional backaches; (2) the in-service diagnoses in November 1952 of chronic lumbosacral strain and lumbar lordosis; (3) the Veteran's statements regarding his fall and subsequent tailbone injury sustained in July 1953 during combat in Korea; (4) the Veteran's statements that driving on the rutted roads in Korea contributed to his back problems; and (5) the 2015 private radiological report indicating current diagnoses relating to the Veteran's back disability. 4. Notify the Veteran 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). 5. Finally, readjudicate the issue on appeal. If the benefit sought is not granted, then furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. 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 (2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs