Citation Nr: 1829318 Decision Date: 05/25/18 Archive Date: 06/12/18 DOCKET NO. 11-25 878 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1969 to December 1971, from March 1973 to December 1974, and from July 1986 to June 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2010 rating decision in the which the RO, inter alia, denied service connection for degenerative disc disease of the lumbar spine. In June 2010, the Veteran filed a timely notice of disagreement (NOD). In August 2011, the RO issued a statement of the case (SOC). In September 2011, the Veteran filed a VA form which the RO accepted as a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). In October 2011, the Board remanded the claim on appeal for development. In March 2017, the Board denied the claim for service connection for degenerative disc disease of the lumbar spine, as well as the claim for higher initial rating for chronic gastritis with irritable bowel syndrome. Thereafter, the Veteran appealed the Board's denials of the claims for service connection and for a higher initial rating to the United States Court of Appeals for Veterans Claims (Court). In December 2017, pursuant to a Joint Motion for Partial Remand (JMPR), filed by representatives for the Veteran and the VA Secretary, the Court vacated the part of the March 2017 decision in which the Board denied service connection for degenerative disc disease of the lumbar spine, and remanded that matter to the Board for further proceedings consistent with the JMPR. As reflected in the JMPR, the parties agreed that the Court should dismiss the higher initial rating claim as the Veteran no longer wanted to pursue his appeal as to that claim. Accordingly, as reflected on the title page, only the claim for service connection is currently before the Board. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic, Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the remaining claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the Court's JMPR, and the Board's review of the claims file, the Board finds that further action on this claim, prior to appellate consideration, is required. The Veteran asserts that degenerative disc disease of the lumbar spine is directly related to service. The Board denied the Veteran's claim, in part based on May 2010 and June 2014 negative VA opinions. The Board also determined that service connection for degenerative disc disease of the lumbar spine was not warranted due to lack of any in-service event and finding that "the first indication of back symptoms after service was not until 2005." The parties to the JMPR found that the May 2010 and July 2014 VA opinions are inadequate and that the Board erred in relying upon this evidence in denying the service connection claim. The parties to the JMPR noted the following deficiencies in the negative VA opinions. First, the May 2010 VA examiner failed to sufficiently explain why an etiology opinion would be based on pure speculation. Second, the May 2010 and July 2014 VA examiners failed to address whether the Veteran's current degenerative disc disease of the lumbar spine could not be related to the Veteran's in-service activities of "lifting and carrying abroad ship." See May 2010 VA examination report. Additionally, both the May 2010 and July 2014 opinions failed to consider relevant service treatment records (STRs) in which the Veteran was noted to have experienced back pain for the prior four to six weeks with "thoraco-lumbar" "pinching." See November 1989 STR. Consequently, the Board finds that a remand is warranted for the AOJ to arrange to obtain an addendum opinion, by an appropriate physician, which addresses the foregoing deficiencies. The AOJ should only arrange for the Veteran to undergo VA exam Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b)(1) (2002); but see also 38 U.S.C. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R.§ 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and if necessary, appropriate authorization to obtain, additional evidence pertinent to the remaining claimson appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity have been associated with the claims file, arrange to obtain from an appropriate physician an addendum opinion addressing the etiology of the Veteran's degenerative disc disease of the lumbar spine. Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire electronic claims file in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. The physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's degenerative disc disease of the lumbar spine had its onset during service, or is otherwise medically related to service, to include the Veteran's back pain for the prior four to six weeks with "thoraco-lumbar" "pinching" (noted in a November 1989 STR). In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions. Specifically, the physician should address whether the Veteran's current degenerative disc disease of the lumbar spine could be related to the Veteran's in-service activities of "lifting and carrying abroad ship." Notably, the absence of documented evidence of a diagnosis of chronic disability and/or associated low back disability in or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state and explain why. Complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the adjudicate the remaining claim on appeal in light of all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).