Citation Nr: 9811676	
Decision Date: 04/15/98    Archive Date: 05/06/98

DOCKET NO.  96-12 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Sioux Falls, South Dakota


THE ISSUE

Entitlement to service connection for low back disability.


REPRESENTATION

Appellant represented by:	Minnesota Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

Thomas H. O'Shay, Associate Counsel




REMAND

The veteran had active military service from March 1975 to 
March 1979.  This matter comes before the Board of Veterans’ 
Appeals (Board) from a rating decision by the Department of 
Veterans Affairs (VA) Medical and Regional Office Center 
(MROC) in Sioux Falls, South Dakota.

Initially, the Board notes that the MROC denied the veteran’s 
claim for service connection for low back disability in 
December 1979, on the basis that the veteran had failed to 
prosecute his claim.  Although the veteran was notified of 
this decision in January 1980, he notably was not notified of 
his appellate rights at that time.  In February 1986, in 
response to another claim for service connection for the same 
disability filed by the veteran the prior month, the MROC 
issued the veteran a letter suggesting the type of 
information he could submit to strengthen his claim, and 
requesting that this information be received within 60 days, 
or at most within one year.  The veteran’s claim was 
apparently administratively denied on the basis of his 
failure to prosecute the claim, as evidenced by a notation, 
dated in April 1986, on VA’s copy of the February 1986 letter 
to this effect.  There is no indication that the veteran was 
notified of this denial.
 
When the veteran’s claim was denied in December 1979, he was 
entitled to notice of his right to initiate an appeal of that 
decision by filing a Notice of Disagreement.  As there is no 
indication that the veteran received such notice until 
January 1996, the Board concludes that the December 1979 
decision is not final, and that the issue currently before 
the Board is therefore correctly stated on the title page of 
this opinion. 

With respect to the veteran’s claim, service medical records 
indicate that he injured his back in 1976.  Post service 
private medical records on file disclose that the veteran’s 
complaints have been attributed to low back strain on a 
number of occasions.  In support of the veteran’s contentions 
is a letter, dated in March 1996, from Michael Schoenleber, 
M.D.  Dr. Schoenleber recorded that the veteran related to 
him that he had injured his back in service, that he had no 
history of back problems prior to service, and that he has 
experienced intermittent back problems since service.  Dr. 
Schoenleber stated that it was his impression, based on the 
described medical history, that the veteran’s low back 
disability is related to service.

The veteran was afforded a VA examination in April 1997, at 
which time X-ray studies of the lumbosacral spine were 
obtained demonstrating the presence of minimal spurring and 
narrowing at the L5-S1 disk space.  Although the veteran was 
diagnosed with degenerative arthritis of the lumbosacral 
spine with possible neurological impairment, the examiner did 
not address the etiology of the veteran’s low back 
disability.  The veteran was afforded another VA examination 
in June 1997, at which time the examiner acknowledged the 
April 1997 X-ray findings denoting degenerative changes of 
the lumbosacral spine.  He indicated that low back sprain or 
strain is a clinical diagnosis and normally can not be 
documented positively by specific physical or radiological 
findings.  The examiner stated that it is quite possible that 
the noted degenerative changes are not the cause of the 
veteran’s back pain.  The examiner concluded, in essence, 
that the degenerative changes are likely due to time, wear 
and tear, and multiple traumatic events, and not to any 
specific traumatic event.  The examiner cautioned that 
positive statements could not be made as to whether the 
degenerative changes are related to the veteran’s low back 
symptoms, or whether the degenerative changes are due to 
traumatic events in service.  He did state that it is likely 
that the service trauma is not the major cause of the 
degenerative changes.

While Dr. Schoenleber related the veteran’s low back 
disability to service, he obviously did so based solely on 
medical history supplied by the veteran.  In addition, 
although the veteran was afforded VA examinations to clarify 
the etiology of his low back disability, the Board finds that 
the VA examination reports of record are inadequate.  The 
April 1997 VA examiner failed to address the etiology of the 
veteran’s low back disability, and the June 1997 examiner 
made findings only with respect to the degenerative changes 
of the veteran’s spine, despite multiple diagnoses of record 
of low back strain and even though the examiner acknowledged 
that it is quite possible that the noted degenerative changes 
are not the cause of the veteran’s back symptoms in any 
event.  Under the circumstances, the Board is of the opinion 
that another examination of the veteran is warranted.

The Board also notes that the veteran has recently indicated 
that he was in the U.S. Naval Reserves from September 1979 to 
February 1983, although he failed to report such service when 
he filed his second claim for service connection for low back 
disability in 1986.  Records of his reserve service are not 
on file.  In addition, the veteran has requested that VA 
obtain pertinent medical records from the Roosevelt Roads 
Naval Hospital in Puerto Rico.

Accordingly, this case is REMANDED to the MROC for the 
following actions:

1.  The MROC should request the 
veteran to identify specific names, 
addresses, and approximate dates of 
treatment for all health care 
providers, private and VA, who may 
possess additional records pertinent 
to his claim.  When the requested 
information and any necessary 
authorizations have been received, 
the MROC should attempt to obtain 
copies of all pertinent records 
which have not already been 
obtained.

2.  The MROC should attempt to 
obtain records of the veteran’s 
reserve duty following his period of 
active service as described in his 
claim filed in August 1995, 
especially records of medical 
examination or treatment following 
active service.

3.  The MROC should contact the 
Roosevelt Roads Naval Hospital in 
Puerto Rico directly, and ask that 
facility to search for any medical 
records for the veteran from 1975 to 
1979, and to provide any such 
records which are located.

4.  When the above development has 
been completed, the veteran should 
be afforded a VA examination by a 
board certified orthopedist, if 
available, to determine the nature, 
extent and etiology of any back 
disability present.  All indicated 
tests should be conducted, and the 
examiner is to set forth all 
findings in detail.  With respect to 
any currently present low back 
disorder, the examiner should be 
requested to provide an opinion as 
to whether it is at least as likely 
as not that such disorder is 
etiologically related to service 
trauma or a disorder noted in 
service.  The complete rationale for 
all opinions expressed should also 
be provided.  The claims folder, 
including a copy of this REMAND, 
must be made available to the 
examiner prior to the examination.  
The examination report is to reflect 
whether a review of the claims file 
was made.  The examination report 
must be typed.

5.  Thereafter, the MROC should 
review the claims file and ensure 
that the above development actions, 
including the requested medical 
examination and opinions, have been 
conducted and completed in full.  
Then, the MROC should undertake any 
other indicated development, and 
readjudicate the issue of 
entitlement to service connection 
for back disability.

6.  If the benefit sought on appeal 
is not granted to the veteran's 
satisfaction, the MROC should issue 
a Supplemental Statement of the Case 
and provide the veteran and his 
representative an appropriate 
opportunity to respond.

Thereafter, the case should be returned to the Board for 
further appellate consideration, if otherwise in order.  By 
this REMAND, the Board intimates no opinion as to any final 
outcome warranted.  No action is required of the veteran 
until he is otherwise notified by the MROC.

This claim must be afforded expeditious treatment by the 
MROC.  The law requires that all claims that are remanded by 
the Board of Veterans’ Appeals or by the United States Court 
of Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).  
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.


		
	SHANE A. DURKIN
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Veterans Appeals.  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) 
(1997).
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