Citation Nr: 1808442 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-04 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for lumbar spine degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty January 1972 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2015, the Board remanded this matter for additional development of the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran states that he did a lot of heavy lifting in service and this resulted in his low back disability. His military occupational specialty was loadmaster, and it may reasonably be conceded that it would have involved heavy lifting. The Veteran's service treatment records (STRs) show that he had a spasm in the lumbosacral area in April 1985. He complained of low back pain in December 1988. His spine was normal on examinations in April 1988 and March 1990. Private medical records show that in August 2005, the Veteran complained of left lower back pain. In September 2007, he reported a one month history of low back pain. He denied any trauma or lifting injuries. In September 2010, J. Billingsley, a physical therapist noted that the Veteran had been involved in physical therapy for back and leg pain for about one year. He opined that the stenosis had come on over a period of time and most likely was related to compressive activities such as pounding, bending, twisting and lifting. He stated that if the Veteran had been involved in such during service, it was certainly plausible that they played a role m his present back dysfunction. In October 2010, N.M. Iverson, M.D., stated that the Veteran was seen in the clinic that month. She noted that much of the Veteran's time in service involved heavy lifting and that such activities "may well have contributed" to the degenerative disease and back pain. She noted that he had surgery in 2007 and that there was no specific incident at that time to account for the sudden onset of his back symptoms. The Board's February 2015 remand requested an examination to ascertain the etiology of the Veteran's low back disability. The examiner was to specifically address the opinions of the physical therapist and Dr. Iverson, and to provide rationale for the opinion offered. On April 2015 VA examination, the examiner opined that it was less likely as not that the Veteran's low back disability was related to service. She noted that there were no STRs documenting injury to the lumbar spine or lumbar spine pain, or radicular symptoms of the lower extremities [which suggests lack of familiarity with the STRs which show the Veteran was seek on different occasions for complaints of back spasms and pain] . She merely noted the opinions of Mr. Billingsley and Dr. Iverson, without providing rationale for her conclusions to the contrary. She further noted that the problems started 15 years after discharge, and stated that it is not uncommon for men aged 40-60 to have disc disease and degenerative changes in the spine. As the VA physician's April 2015 opinion was based on erroneous facts it lack probative value. As it did not reconcile the opinion offered with those already in the record to the contrary, it is nonresponsive to the Board's remand instructions. Accordingly, a corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The case is REMANDED for the following : 1. The AOJ should arrange for the record to be returned to the physician who conducted the April 2015 VA examination (if she is an orthopedist; if not the record should be forwarded to one) for review and an addendum medical opinion regarding the likely etiology of the Veteran's low back disability. The physician must specifically opine whether it is at least as likely as not that the Veteran's current low back disability is related to the lumbosacral spasm and complaints of pain noted in service or to his duties in service, which involved heavy lifting. The provider must also specifically express agreement or disagreement with the opinions of Mr. Billingsley and Dr. Iverson (and include explanation of rationale for any disagreement). There must be rationale for all opinions offered. 2. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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 remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).