Citation Nr: 19168043 Decision Date: 09/04/19 Archive Date: 09/03/19 DOCKET NO. 14-13 527 DATE: September 4, 2019 REMANDED Entitlement to service connection for residuals of a lumbar spine injury is remanded. Entitlement to service connection for residuals of a cervical spine injury is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1955 to May 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran and his daughter testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In July 2017, the Board remanded this matter for additional development and, in June 2018, denied the claims. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Court granted a Joint Motion for Remand (JMR) that vacated the Board’s June 2018 decision and remanded the case for further consideration. Such now returns to the Board. 1. Entitlement to service connection for residuals of a lumbar spine injury. 2. Entitlement to service connection for residuals of a cervical spine injury. In March 2009 and January 2011 written correspondences, the Veteran reported that he injured his lumbar and cervical spine in a fall from a ladder during service. Additionally, during the April 2017 Board hearing, he testified that his in-service fall occurred in late June 1958 while he was serving off the coast of Pearl Harbor, Honolulu. He further testified that he was seen by a medic, who sutured a laceration above his left eye, and then was seen at Tripler Hospital where X-rays were taken. The Veteran also indicated that he had a second injury to the back while working in the engine room when he strained it while lifting a heavy door. He further reported that, following service, he continued to have problems with his back and neck for which he sought treatment, which resulted in back surgery in 1990. With regard to the post-service injuries incurred as a result of an automobile accident in 1997, the Veteran noted that such merely aggravated his back and neck disorders as he was having problems prior to such accident. Thus, he contends that service connection for residuals of lumbar and cervical spine injuries is warranted. In June 2018, the Board denied service connection for residuals of a lumbar spine injury based on a finding that there was clear and unmistakable evidence that the Veteran’s lumbar spine disorder pre-existed his entrance to active duty, and did not permanently increase in severity beyond the nature progression during active duty. Furthermore, the Board denied service connection for residuals of a cervical spine injury based on a finding that a cervical spine disorder was not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of service discharge. In reaching such determinations, the Board relied on a July 2017 VA medical opinion. However, the parties to the February 2019 JMR observed that the July 2017 VA examiner, in finding that the Veteran’s lumbar spine disorder was not aggravated during service, did not address the Veteran’s testimony regarding his in-service back injuries. Furthermore, in seeking such opinion in July 2017, the Board directed the VA examiner to consider the June 1958 service treatment record (STR) that reflected that the Veteran slipped on the floor and sustained a laceration to the forehead above the left eye. Here, the Board noted that the Veteran alleged that such injury was due to a fall from a ladder rather than a slip on the floor. However, the parties to the February 2019 JMR observed that the Board misread the June 1958 STR as it states that the Veteran, “tripped and fell on 0-1 deck. Has 1” jagged wound on forehead.” The parties also observed that the Board erred by finding the duty to assist satisfied when (1) VA failed to request the Veteran’s clinical records from Tripler Army Hospital and (2) VA failed to request a release for reasonably identified records regarding the Veteran’s 1990 laminectomy and 1997 automobile accident. In this regard, the parties noted that, at his April 2017 Board hearing, the Veteran reported having X-rays taken at Tripler Army Hospital following his June 1958 injury; however, VA did not make efforts to obtain such records. The Veteran further reported that a private physician, Dr. Golden, performed back surgery on him in 1990 at Sacred Heart in Eugene, Oregon, and his 1997 automobile accident was the subject of a lawsuit for which he was deposed. However, VA did not request the Veteran to provide a release for such records. Consequently, the Board finds that a remand is necessary in order for the AOJ to attempt to obtain the Veteran’s outstanding treatment records from Tripler Army Hospital, his 1990 laminectomy, and 1997 automobile accident and, thereafter, obtain an addendum opinion addressing the etiology of the Veteran’s claimed lumbar and cervical spine disorders. The matters are REMANDED for the following action: 1. Obtain the Veteran’s clinical records from Tripler Army Hospital for treatment following his June 1958 injury. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of all the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) 2. After securing any necessary authorization from the Veteran, obtain all outstanding treatment records from Sacred Heart in Eugene, Oregon, and Dr. Golden, who performed back surgery in 1990 at such facility, and all records pertaining to his 1997 automobile accident lawsuit. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After obtaining any outstanding records, forward the Veteran’s record to an appropriate examiner so as to render an addendum opinion addressing the etiology of the Veteran’s lumbar and cervical spine disorders. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: Lumbar Spine Disorder Is there clear and unmistakable evidence that the Veteran’s currently diagnosed lumbar spine disorder, identified as degenerative disc and joint disease, pre-existed service? The examiner should specifically consider the August 1958 STR that reflects the Veteran’s report that he had five or six vertebrae out of place due to a pre-service football-related injury that occurred five years previously, i.e., approximately 1953, which was two years prior to his enlistment in the Coast Guard, and thoroughly explain his or her rationale for reaching such conclusion. (i) If there is clear and unmistakable evidence that a lumbar spine disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. In offering such opinion, the examiner should address the significance, if any, of the Veteran’s documented report of low back pain in May 1957, his in-service fall in June 1958, and his report of low back pain, which he claims was the result of lifting a heavy door, in August 1958 on his pre-existing lumbar spine disorder. If there was an increase in the severity of the Veteran’s lumbar spine disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that a current lumbar spine disorder pre-existed service, then the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder is directly related to the Veteran’s military service, to specifically include his documented report of low back pain in May 1957, his in-service fall in June 1958, and his report of low back pain, which he claims was the result of lifting a heavy door in August 1958. Cervical Spine Disorder Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed cervical spine disorder, identified as degenerative disc and joint disease, is directly related to the Veteran’s military service, to specifically include his documented report of low back pain in May 1957, his in-service fall in June 1958, and his report of low back pain, which he claims was the result of lifting a heavy door in August 1958. In offering such opinions, the examiner should consider the May 1957 STR that reflects complaints of low back pain; the June 1958 STR that reflects that the Veteran “tripped and fell on 0-1 deck. Has 1” jagged wound on forehead;” and the August 1958 STR that reflects complaints of low back pain, which he claims was the result of lifting a heavy door. The examiner should also consider the entirety of the record, to specifically include the Veteran’s, his family members’, and friend’s reports of a continuity of back and neck symptomatology since service; his 1990 back surgery; and the nature of his 1997 automobile accident injuries, to include his assertions that such injuries aggravated, rather than caused, his previous lumbar and cervical spine disorders. All opinions expressed must be accompanied by supporting rationale. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.