Citation Nr: 1817090 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 12-10 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability and associated right lower extremity sciatica. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to June 1981 and was discharged under honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a low back disability and associated right lower extremity sciatica (hereinafter, "low back disability"). In August 2016, the Board remanded the case for further development of the record, including obtaining outstanding records and a VA medical opinion. Subsequent to the March 2017 statement of the case, the Veteran submitted additional evidence in the form of a private opinion, with a waiver of RO review. However, as the Board is remanding the claim for further development, the RO will have the opportunity to consider the additional evidence. In a September 2013 rating decision, the RO denied service connection for bilateral hearing loss, coccydynia, posttraumatic stress disorder, and right upper extremity radicular pain and continued a 10 percent disability rating for tinnitus. The Veteran filed a timely notice of disagreement and the RO issued a statement of the case in November 2016. The Veteran did not perfect an appeal on the issues; therefore, the issues are not before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic 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 contends that service connection is warranted for a low back disability and associated right lower extremity sciatica ("low back disability"). Specifically, the Veteran contends that he injured his low back during an in-service motorcycle accident. Service treatment records reflect that in August 1978, the Veteran fell on his coccyx during a motorcycle accident. X-ray imaging revealed a dislocated coccyx, for which the Veteran underwent a coccyx reduction. He was assigned light duty and given a rubber donut. Several days later, the Veteran reported lower back pain due to his dislocated coccyx and was prescribed pain medication to take as needed. A January 2010 letter from the Veteran's physician, Dr. D.S., states that the Veteran had been under his care since 1995 for chronic back pain due to bulging discs at L4, L5 and S1, and that a review of X-ray studies and MRIs showed that the Veteran's low back disability pathology was due to an old injury related to the Veteran's in-service motorcycle accident. Dr. D.S. opined that the Veteran's low back disability started from there and had become worse over time. The Veteran was afforded a VA examination in December 2010. The examiner found that the Veteran was suffering from low back pain but that the complaints of pain down the side of his thigh, left, and foot did not coincide with any known nerve root. The examiner opined that the Veteran's low back disability was not related to his accident, as there were no documented complaints of back pain until 15 years after the accident. In a March 2012 letter from the Veteran's physician, Dr. P.Y., the physician opined that due to the mechanism of the 1978 injury to the coccyx in service, there was a violent concussion of forces from caudal to cranial which transmitted through the Veteran's spinal structures, and that the Veteran sustained spinal injuries concurrent with his coccyx injury. In an August 2016 decision, the Board found that the January 2010 opinion of Dr. D.S., the December 2010 VA examiner's opinion, and the March 2012 opinion of Dr. P.Y. were inadequate. Therefore, the Board remanded the claim for further development, including requesting what appeared to be incomplete service treatment records, obtaining outstanding treatment records from Dr. D.S. dating back to 1995, and a new VA examination opinion. In an August 2016 letter to the Veteran, he was requested to authorize the release of his treatment records from Dr. D.S. The record reflects that the Veteran did not respond to this request and it does not appear that the RO made a second attempt to request that the Veteran authorize the release of his treatment records. The RO made a request for the Veteran's outstanding military and service treatment records. Military personnel records associated with the claims file reflect that during his period of service, the Veteran was committed to the North Carolina Department of Prisons. It does not appear that the RO requested that the Veteran authorize a release of his prison treatment records. A December 2016 VA examination report reflects that the December 2010 examiner reviewed the Veteran's entire claims file "page by page" and opined that it continued to be his opinion that the Veteran's current back pain was not related to his military service. However, the examiner focused on addressing the Board's finding that the examiner's opinion was inadequate and explaining why the Board was incorrect, rather than providing opinions responsive to the Board's remand directives. Additionally, the Board finds the opinions provided in the December 2016 examination report are inadequate as the opinions are based on inaccurate premises. The examiner found that it was "medically inconceivable" that the Veteran could have an asymptomatic back injury, suffer no documented pain for 16 years, and then suffer back pain due to that claimed injury. The examiner opined that while it was true that suffering a coccyx injury can also injure the back, there was no evidence that the Veteran suffered any type of back injury during the motorcycle accident. However, the Board notes that regardless of whether or not the coccyx was dislocated, several days after the accident the Veteran complained of back pain. Additionally, it does not appear that the examiner considered the Veteran's lay statements that he did not seek treatment because he had been a Marine who kept going through the pain as he was trained to do, or that he did not have medical insurance or the financial means to seek treatment. The examiner also found that the Veteran had never been diagnosed with S1 radiculopathy, but the Board notes that in March 2002, Dr. W.F. diagnosed the Veteran with right S1 radiculopathy. For these reasons, the Board finds the December 2016 examination report, and opinions contained therein, inadequate. In an April 2017 letter from the Veteran's physician, Dr. J.S. indicated that the Veteran had described his in-service motorcycle accident, the treatment he received for his dislocated coccyx, and that the Veteran did not seek treatment until years later due to the trauma of his in-service treatment. At a later date, symptoms of numbness started in his right leg and have gotten worse over the years. The Veteran stated he did not seek treatment due to financial reasons. The Veteran further indicated he had had two back surgeries and was now in constant pain. Dr. J.S. opined that after reviewing his MRI findings from 2008 and the history as described by the Veteran, it was his opinion that the Veteran's injuries and pains were caused from the accident years ago. The Board finds the April 2017 opinion of Dr. J.S. is not sufficient to make an informed decision. The opinion did not take into account or discuss that the Veteran injured his coccyx rather than his lumbosacral spine in the accident. Furthermore, while the doctor indicated that the 2008 MRI was reviewed, the letter does not reflect that the Veteran's medical records were reviewed nor does the opinion take into account the 1994 MVA, and March and April 2002 treatment records in which the Veteran reported progressive back pain and intermittent sciatica for the past seven years. As there is insufficient evidence to decide the claim, the Board finds that a remand is warranted for a new VA examination and medical opinion as to the nature and etiology of the Veteran's low back disability. Upon remand, the Veteran's claims file should be provided to an examiner other than the December 2010/December 2016 VA examiner. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran authorize the release of treatment records from the North Carolina Department of Prisons that are pertinent to his back. Appropriate efforts must then be made to obtain these records. Any requests made, and responses received, should be documented in the Veteran's electronic claims file. 2. Request the Veteran to authorize the release of treatment records from Dr. D.S. dated since 1995 pertaining to his back. Appropriate efforts must then be made to obtain these records. Any requests made, and responses received, should be documented in the Veteran's electronic claims file. 3. Then, schedule the Veteran for a VA examination with an examiner other than the December 2010/December 2016 examiner to assess the nature and etiology of the Veteran's low back disability with associated sciatica. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must conduct any testing deemed necessary and provide all findings. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must identify all back disabilities. For each identified back disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that such began during service, or is related to any incident of service, to include his in-service motorcycle crash and dislocated coccyx; or, began within one year after discharge from active service. The examiner is asked to comment on the Veteran's in-service complaint of low back pain shortly after his accident, his lay statements concerning onset of his low back disability and his reasons for not seeking treatment, and his post-service 1994 motor vehicle accident. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 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 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). _________________________________________________ K. PARAKKAL 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).