Citation Nr: 18101489 Decision Date: 05/07/18 Archive Date: 05/07/18 DOCKET NO. 14-41 170 DATE: May 7, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 1 REMANDED ISSUE 1. Entitlement to service connection for lumbar spine condition is remanded. The Veteran served on active duty from April 2008 to April 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs Regional Office (RO). A remand is necessary and further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A, and to afford the Veteran an adequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that while the evidence of record shows the Veteran was treated for low back pain during service, it is unclear whether the Veteran has a current diagnosis for a lumbar spine condition. The service treatment records (STRs) include a November 2009 medical record showing a lumbosacral spine examination indicating the T12 level appeared to be misaligned and the lumbosacral spine did not demonstrate full range of motion. However, a January 2010 X-ray study and an August 2011 MRI study revealed a normal back. STRs further show the Veteran underwent physical and chiropractic therapy and was treated with injections, medication and a TENS unit. The Veteran denied any history of trauma or specific injury during active duty service, although in August 2011 he reported working on B52 bombers which required him to lift heavy machinery and tool boxes. The Veteran’s STRs further show diagnoses for lumbago and thoracic discogenic pain. Additionally, an August 2011 EMG/NCS study revealed acute left L3 and L4 radiculopathy and the Veteran underwent selective nerve root block procedures. The Board further notes that the STRs do not include the Veteran’s separation examination, however, they do include a November 2011 “separation physical” at which the Veteran reported no current acute complaints. Pain was reported 0 on a scale to 10. The physician noted a past medical history for back pain and an examination of the musculoskeletal system revealed normal movement, no demonstrated tenderness on palpation, muscle tenderness or abnormalities. The Veteran has also submitted private treatment records including a December 2011 spine examination which noted X-ray and diagnostic studies revealing diagnoses for discogenic back pain, pelvic girdle dysfunction and mild L5-S1 spondylosis. In a March 2015 letter, VA requested the Veteran submit the diagnostic report upon which these diagnoses were based. Thereafter, the record shows the Veteran submitted copies of his August 2011 lumbar spine MRI films, which, as noted above, revealed a normal lumbar spine. The Veteran has also undergone VA examinations in January 2012 and May 2015. The January 2012 VA examiner noted a musculoskeletal back condition and further noted under diagnosis “in-service low back pain with negative examination of the lumbar spine by physical examination, X-ray and MRI evaluation.” The Veteran reported low back pain that began in 2009 due to carrying heavy objects. The examiner further noted prior and current in-service low back treatment. Lastly, the examiner noted an X-ray study that revealed a normal lumbar spine. Post-service medical records submitted by the Veteran show that active back problems, including discogenic low back pain and spondylosis, were noted in November 2014. However, it is unclear what those notations were based on as they are unaccompanied by diagnostic studies. The Board additionally notes that this medical record does not evidence current treatment for a back condition, including via medication. A review of the May 2015 VA examination report shows the examination was conducted in person, however, no examination results or diagnoses were provided. The examiner opined that the claimed back disability was “less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The Board finds the May 2015 VA examination inadequate to adjudicate the issue on appeal. As noted above, the evidence of record is unclear whether the Veteran has a current diagnosis for a lumbar spine condition. In this regard, although the May 2015 VA examination report noted an in-person examination, the examiner did not include any examination findings. Further, the Board finds the VA examiner’s dismissal of medical evidence arbitrary particularly in light of the fact that current diagnostic testing and/or a physical examination does not appear to have been conducted. Therefore, the Board finds that another VA examination is necessary to determine whether the Veteran has a current lumbar spine condition. Accordingly, a new VA examination is necessary. The Board recognizes the representative’s request for an outside independent examination pursuant to 38 C.F.R. § 3.328 and 20.901(d). The Board has considered the request; however, as the Board has concluded another physical VA examination is necessary, such will be conducted on remand. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records from the Veteran’s VA treatment facilities and all private treatment records from the Veteran not already associated with the file. 2. Request the Veteran’s complete service treatment records. If any service treatment records are unavailable, issue a formal finding of unavailability and notify the Veteran so that he can submit any service medical records in his possession. 3. After completion of the above development, schedule the Veteran for an examination by an appropriate examiner who has not previously examined the Veteran to determine the nature and etiology of any diagnosed lumbar spine condition. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or greater probability) that any diagnosed lumbar spine condition is etiologically related to the Veteran’s period of service? The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. Then, readjudicate the claim remaining on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel