Citation Nr: 1754183
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 12-15 295 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUE

Entitlement to service connection for a low back disability.

REPRESENTATION

Appellant represented by: North Carolina Division of Veterans Affairs

WITNESSES AT HEARING ON APPEAL

Veteran and his spouse

ATTORNEY FOR THE BOARD

F. Yankey Counsel

INTRODUCTION

The Veteran served on active duty from January 1967 to December 1968.

This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which found that there was new and material evidence presented to reopen the claim for service connection for residuals, low back injury, but denied service connection for residuals, low back injury on the merits.

The Veteran testified before the undersigned at a March 2016 Travel Board hearing. The hearing transcript is of record.

In May 2016, the Board reopened the claim for entitlement to service connection for residuals, low back injury, and remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part.

REMAND

The Veteran contends that he injured his low back during active military service.

Service treatment records show that the Veteran was treated in August 1968 for a pulled muscle, sustained while lifting boxes two days previously. At his December 1968 separation examination, he gave a history of having or having had back trouble. Examination was negative.

Treatment records from the WNC Hypertension Center dated in April 2016 show treatment for low back pain since 2007. Outpatient treatment records from the VA Medical Center in Asheville dated from January 2012 to May 2016 show treatment for chronic low back pain and degenerative disc disease of the lumbar spine.

The Veteran was afforded a VA examination in July 2011. As noted in the Board’s May 2016 remand, the examiner’s opinion is inadequate for evaluation purposes. As such, and in accordance with the Board’s May 2016 remand, the Veteran was afforded another VA examination in June 2016. The June 2016 VA examiner diagnosed degenerative disc disease of the lumbar spine, which he opined is less likely as not related to the Veteran’s in-service back injury. The rationale was that there were more than 30 years between the 1968 in-service injury and initial post-service treatment in 2000, with no treatment in between for a recurring low back disorder. The examiner also concluded that the in-service back disorder was most consistent with a self-limited and resolved condition.

The June 2016 examiner found that although there was evidence of treatment for a back injury in service, as there was no evidence of a back disorder for many years following the Veteran’s discharge, his current low back disability is not related to his back injury in service. However, this position is not in accord with the law, regulations and court decisions. It is symptoms and not treatment that must be considered when rendering an opinion as to the etiology between a current condition and events in service. Additionally, service connection is possible for diseases first identified after service. 38 C.F.R. § 3.303(d) (2017). The June 2016 examiner did not provide an adequate opinion as to whether the low back problems identified after service are related to a disease or injury in service or to the Veteran’s reported continuous symptomatology. The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board notes that the VA examiner did not consider the Veteran’s reports of continuity of symptomology and self-treatment for back problems following service. The Board also notes that the June 2016 examiner did not consider the Veteran’s reports of back trouble, in his Report of Medical History, completed four months after his in-service back injury, at the time of his discharge. Furthermore, the June 2016 examiner failed to consider April 2016 treatment records from the Veteran’s private physician, indicating that he had treated the Veteran for chronic back pain since at least 2007, which was of many years duration and “probably” related to activities and injuries during his military career. See April 2016 private treatment records from R.C., MD/PA. The Board notes that the speculative nature of the private physician’s opinion diminishes its probative value. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet App 79 (2006). Moreover, the physician’s statement is not supported by clinical data or other rationale and does not provide the required degree of medical certainty to support the grant of service connection. See Bloom v. West, 12 Vet. App. 185, 187 (1999).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet.App. 295 (2008). As the June 2016 examiner did not consider all of the Veteran’s history or complaints, his negative opinion is also inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The Veteran is competent to report the onset and nature of his back problems. The Veteran’s reports provide competent and credible evidence of a low back disability during active military duty and a continuity of symptoms since. Furthermore, his reports are consistent with a back injury in service.

As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s current low back disability is necessary.
See 38 C.F.R. § 4.2 (2017). In rendering the new opinion, the examiner should consider the Veteran’s statements regarding the occurrence of his low back problems, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2017).

Accordingly, the case is REMANDED for the following action:

1. Updated treatment records should be obtained and added to the claims folder/efolder.

2. Following completion of the above, afford the Veteran an appropriate VA examination with an appropriate expert to determine the nature and etiology of his claimed low back disability. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed.

For each currently diagnosed low back disability, the examiner should provide an opinion as to whether the disability is, at least as likely as not (50 percent or greater probability), of service onset or otherwise related to a disease or injury in service.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner should specifically consider the Veteran’s reports of back trouble in his Report of Medical History completed at the time of his discharge. The examiner should also discuss the private physician’s opinion that the Veteran’s chronic low back pain is probably related to activities and injuries during his military career.

The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion.

A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided.

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

3. Then, the AOJ should readjudicate the issue on appeal. If the claim is not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and afforded the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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

(CONTINUED ON NEXT PAGE)

action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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).

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