Citation Nr: 1808666 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-21 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the claim of entitlement to service connection for a low back strain. Jurisdiction of the claim is currently with the RO in Columbia, South Carolina. The Veteran's back claim was remanded in an October 2011 BVA decision for further development, to include an adequate medical examination. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND The Board finds that further action is necessary before a decision can be reached on the merits of the Veteran's claim. The Board notes that the United States Court of Appeals for Veterans Claims has held that once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Here, the September 2017 examiner stated based on x-ray evidence that there was no current diagnosis of a low back condition. However, a VA x-ray report in August 2017 clearly indicated that an MRI may be of benefit to assess disc disease. The Board notes that a January 2007 MRI report of record showed degenerative joint disease in the lumbar spine. A VA examination in October 2008 diagnosed chronic lumbosacral strain. A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Also, the Board points to the examiner's assertion that the Veteran has had continuous symptomatology from a low back condition since 2007, which seemingly contradicts the lack of a current diagnosis. The examiner failed to address the Veteran's statements in rendering her opinion. Indeed, VA has also acknowledged, and a service treatment note shows, that the Veteran suffered a back injury in service in 1999. The Board acknowledges the Veteran's representative's arguments, submitted in December 2017 and January 2018, that the September 2017 VA examination is inadequate. The representative argues that the examination does not contain an opinion as to whether the Veteran's in-service lifting duties caused the Veteran's current back condition, nor is there an opinion as to whether the back disorder is of service onset, notwithstanding an increase in severity due to her 2007 injury. The representative also argues, citing to Buchanan v. Nicholson, 451 F.3d at 1366 (Fed. Cir. 2006) that the rationale contained in the examination is insufficient because a lack of documentation of ongoing complaints since service cannot, without explanation, render lay assertions not credible. The Board is in agreement that further discussion and consideration of the Veteran's lay assertions of record is necessary in the formulation of an opinion. The Veteran is competent to provide testimony concerning factual matters of which she had firsthand knowledge, such as symptoms of a current disability. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Here, the Board finds that additional VA medical opinion is required. See 38 C.F.R. § 4.2 (2017) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board finds that there is insufficient competent medical evidence on file to make a decision and must therefore remand to obtain an additional medical examination regarding the Veteran's low back disability. See McLendon, 20 Vet. App. 79. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any outstanding VA and private medical records from providers who have treated the Veteran's low back condition. Records must then be associated with the claims file. 2. After the above has been completed, the claims file should be forwarded to the September 2017 examiner for an addendum opinion. If the September 2017 examiner is not available, the Veteran's claims file should be forwarded to another suitably qualified examiner for preparation of the addendum opinion. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder is of service onset or otherwise related to service. The examiner must review the claims file and discuss all symptomatology associated with the Veteran's lumbar spine condition. In particular, the examiner must make reference to and discuss the Veteran's lay assertions of record, including specifically, that she has had recurrent low back pain since 1999 and that the condition has gotten worse. The 2007 low back injury should also be discussed, to include whether it represents a chronic worsening of a back disorder which began in service. In rendering the opinion, the examiner must note that VA has already conceded that the Veteran has demonstrated a low back disability since the claim was filed, as well as an injury in service. 3. After undertaking any other development deemed appropriate, the AOJ must re-adjudicate the issue on appeal, to include consideration of the additional evidence obtained since it last adjudicated this claim. Specific consideration must be given to all evidence received since the last supplemental statement of the case (SSOC), which was issued in December 2017. If the claim is denied a SSOC should be issued to the Veteran and her representative. They must be afforded an opportunity to respond before the record is returned to the Board for further appellate review, if in order. 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). _________________________________________________ BARBARA B. COPELAND 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).