Citation Nr: 1815261 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-03 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and B.M. ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1994 to August 1998. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs, Regional Office, located in Cleveland, Ohio (RO), which denied the claim for service connection for spinal fusion of L4-5, L5-S1 (claimed as lumbar disc). In April 2017, the Veteran and his mother provided testimony before the undersigned during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. In June 2017, the Board re-characterized the matter on appeal as a lumbar spine disorder and remanded the matter to the RO (via the Appeals Management Center (AMC)) for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a lumbar spine disorder. He asserts that his current lumbar spine disorder, identified as degenerative arthritis and status post spinal fusion, is result of injury to his back during his period of service. He reports that he has experienced low back pain since the in-service injury. In June 2017, the Board remanded the Veteran's claim in order to afford him with a VA examination to obtain a medical opinion that addressed the etiology of his lumbar spine disorder. The report of an August 2017 VA examination has been associated with the claims folder; however, the Board finds that a remand is needed to obtain an addendum medical statement to the VA examiner's medical opinion. The August 2017 VA examiner did not provide a specific statement in the rationale supporting the negative medical nexus opinion, which addressed the Veteran's lay statements regarding continuity of low back symptoms since service. See Dalton v. Peake, 21 Vet. App. 23 (2007). Moreover, the 2017 VA examiner did not comment the private neurosurgeon's medical opinion that the Veteran's in-service back injury was misdiagnosed as a muscular ligamentous strain of the low back. See January 2008 and February 2010 private medical statements. The Board acknowledges that the private neurosurgeon's medical statement is based on an inaccurate history that there was no testing done during the Veteran's period of service following his in-service back injury. In this regard, a September 1997 service treatment record that noted x-ray film of the spine was normal. However, a statement from the VA examiner that discusses the negative x-ray findings compared to the later MRI findings of herniated disc would be helpful. On remand, an addendum medical statement should be obtained in which the 2017 VA examiner, or another appropriate medical professional, considers the Veteran's lay reports of continuity of back problems since his period of service as well as the findings contained in the February 2010 private medical statement from the Veteran's treating neurosurgeon. Also, on remand, another attempt should be made to seek the Veteran's assistance in obtaining outstanding records of pertinent treatment for his lumbar spine as well as pertinent records from the Ohio Bureau of Workers' Compensation. The Board wishes to emphasize that the Veteran's cooperation is essential to obtain these outstanding records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA's duty to assist is not a one way street; if a veteran wishes help he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence). These records may be helpful in support of the Veteran's lay reports of continuity of low back pain since service. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify any outstanding, relevant private treatment records, to include providing the appropriate authorization for release, to include records from his family care physician (Dr. E.) and from the Ohio Bureau of Workers' Compensation. All records obtained must be associated with the claims file. 2. Arrange for the examiner who conducted the August 2017 VA back examination, if still available, to provide an addendum that contains an opinion as to whether it is at least as likely as not that the Veteran's current lumbar spine disorder (degenerative arthritis and status post spinal fusion) is at least as likely as not (a probability of 50 percent or greater) related to the Veteran's military service. In doing so, the Board asks the examiner to consider the service treatment records that reflect complaints of low back pain over a period of several years during service as well as consider the Veteran's lay testimony that he has had low back symptoms since service. Also, the examiner is asked to consider the findings contained in the January 2008 and February 2010 private medical statements from the Veteran's treating neurosurgeon, and in particular, the finding that the Veteran's in-service back injury was misdiagnosed as muscular ligamentous strain of the low back. The examiner is asked to discuss the September 1997 service treatment record that noted x-ray film of the spine was normal as well as the later MRI findings of herniated disc. All opinions should be set forth in detail and explained in the context of the record. If the examiner is unable to provide opinions to any of the questions above, then the examiner should state so and why. If the August 2017 VA examiner is no longer available, and the new VA examiner determines that the requested addendum cannot be provided without re-examining the Veteran, the AOJ should schedule the Veteran for a VA examination in connection with the claim. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the review. The examiner should be requested to review the claims folder and state that this has been accomplished in the examination report. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. 3. Then, after ensuring any other necessary development has been completed and the remand instructions have been complied with, readjudicate the Veteran's service connection claim with consideration of evidence received since the most recent supplemental statement of the case. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).