Citation Nr: 1826985 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 15-00 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to July 1985, on October 1, 2001, and from December 2009 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2018 videoconference hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a low back disability that he contends was aggravated by his third period of active service. The Veteran provided testimony at a January 2018 hearing that the heavy lifting and pulling of 100 plus pound items aggravated his existing back injury. Service treatment records (STRs) are silent for treatment or diagnoses of a low back disability, as the Veteran indicated at the hearing that he self-medicated and did not seek treatment for his back because he had an upcoming promotion that he did not want to jeopardize due to an injury. Post-service treatment records reveal that in December 2003, the Veteran had microscopic diskectomy at L4-5 and L5-S1, right with operative microscopic control assistance. VA treatment records note that he complained of issues with low back pain in December 2010, approximately 10 months after his third period of service. In January 2012, the Veteran complained of recurrent low back pain with radicular symptoms in his right leg. The Veteran was afforded VA examination in April 2014, which diagnosed lumbar disc syndrome, L4-L5 and L5-S1. The examiner opined that it was less likely than not that his low back condition, which was clearly present prior to his period of active service, was aggravated during his period of active service. The examiner indicated that the Veteran reported that his current low back pain radiating into his right leg is secondary to his lumbar disc disease first noted in 2003. The examiner reasoned that there is no evidence that the Veteran was seen for low back pain during his period of service. The examiner noted that post-deployment assessments are negative for swollen, stiff or painful joints, and a September 2009 MRI indicates a history of lumbar surgery in 2003 with right foot weakness. He notes that this finding was clearly present prior to the Veteran's period of service. The examiner also indicated that the Veteran is a warehouse supervisor and does some farming, which causes prolonged sitting periods and periodic lifting. The examiner explained that this note also gives a causal relationship for the Veteran's back pain being related to his present work. He concluded that a January 2012 nephrology note stated that his only complaint is back pain, and that it is relatively minor and has waxed and waned over the years. The April 2014 examiner did not consider the Veteran's lay statements, and did not provide rationale for his reasoning. Additionally, there is no discussion regarding aggravation and whether the Veteran's 2003 condition was aggravated by service, to include heavy lifting and pulling of 100 plus pound items, causing his current issues. As such, the VA examination is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran's low back. The need for an examination is left to the determination of the examining individual. The claims file should be provided for review. The examiner is asked to offer an opinion that addresses: (a) Whether lumbar disc syndrome, L4-L5 and L5-S1 (a preexisting disorder) underwent an increase during the Veteran's third period of active duty, to include heavy lifting and pulling of 100 plus pound items; and (b) If there was an increase (i.e. permanent worsening) of the preexisting disorder, was this increase "clearly and unmistakably" due to the natural progression of the condition? If aggravation is shown, then provide a description of what the baseline of the condition was before aggravation. 2. Readjudicate the appeal. The Veteran 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 (West 2012). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).