Citation Nr: 1761172
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 13-33 757 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas

THE ISSUES

1. Entitlement to service connection for a lumbar spine disorder.

2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression secondary to gout and a lumbar spine disorder.

REPRESENTATION

Appellant represented by: Eric A. Gang, Attorney at Law

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel

INTRODUCTION

The Veteran served on active duty from March 1985 to March 1988, with additional Reserve service.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In July 2014, the Veteran testified during a hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

In August 2014, the Board remanded this matter for further development and recharacterized the claim for depression as one for an acquired psychiatric disorder.

In September 2015, the Board denied the above issues, and the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC or Court). In March 2017, the Court issued a Memorandum decision vacating and remanding the Board’s decision with respect to these claims. The Memorandum Decision also affirmed the Board’s September 2015 denial of a claim of entitlement to service connection for gout.

In August 2017, the Board issued a decision that remanded the above issues for additional development. The Board vacated this decision in a September 2017 decision in response to the Veteran’s timely request to change his representative and to be allowed to submit additional evidence. He was notified that he would have until December 20, 2017, to submit this evidence.

The change of representation is noted above, and the Veteran has not submitted any additional evidence.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012).

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

REMAND

The Board must remand this appeal for compliance with terms of the March 2017 Memorandum Decision. Specifically, with respect to the claim of entitlement to service connection for a lumbar spine disorder, the Court determined that the Board erred in failing to return a March 2013 VA examination so that the examiner may consider whether service connection based on continuity of symptomatology is warranted.

In relevant part, the March 2013 VA examination report notes that the Veteran served on active duty from March 1985 to March 1988 and it provides a description of the Veteran’s service treatment records. The examiner noted that the Veteran’s January 1985 enlistment examination and medical history reports reflect no history of recurrent back pain. A July 1986 record notes that the Veteran had left-sided back pain for a few days with no inciting event and no trauma. He was diagnosed with left back pain and given parafon forte and bengay. A November 1987 record notes that the Veteran did some heavy lifting for two days and was now complaining of low back pain. The impression was lumbar strain. He was given parafon forte and tolectin. A January 1989 record notes that the Veteran had been experiencing continuing low back pain for months. He had trouble sleeping and denied trauma. By examination, there was minimal palpable tenderness over the right sacroiliac joint. The impression was mild sacroiliac strain. A January 1989 lumbar spine x-ray noted that the Veteran’s lumbar spine and pelvis were normal. An August 1989 report of medical history for an Army Reserve physical noted that the Veteran reported a history of recurrent back pain and that his usual occupation was a product mover for Tyson Poultry. An August 1989 medical examination for the Veteran’s Army Reserve physical noted a normal spine on examination.

In addition to the above, the Board notes that the physical profile that was listed on the August 1989 examination assigned PULHES profiles of “1” for all systems, which indicates a high level of medical fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (indicating that a “PULHES” profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The “P” stands for “physical capacity or stamina,” the “U” indicates “upper extremities,” the “L” is indicative of “lower extremities,” the “H” reflects the condition of the “hearing and ears,” the “E” is indicative of the “eyes,” and the “S” stands for “psychiatric condition”).

The examiner also noted that a November 2011 radiology report noted a finding of mild degenerative changes of the lumbar spine. The record also noted that the Veteran had a history of chronic low back pain from a work-related injury suffered 10 to 15 years ago.

The VA examiner noted the Veteran’s report of low back pain for over 20 years, with the initial episode lasting 3-4 days after stacking old metal desks in 1986 or 1987. The Veteran also reported trouble with back pain 1-2 times per year until 1997, when it worsened after he moved a heavy object with his job as a sander (which involved prying heavy pieces of wood out from machinery). At that time, the pain was worse and lasted much longer than usual, a couple of months. After that, he changed his job to “a woodright”, which involved lifting not as heavy of objects, but still requiring standing and bending. The Veteran reported gradual worsening of low back pain, but that he continued to work until approximately 2008. The Veteran reported medication use, of moderate effectiveness.

In her narrative, the examiner noted that, although the Veteran reported that there was an event during his service time that started his back trouble, the record did not show a causative event for his first episode in July 1986. She noted that the Veteran reported heavy lifting as inciting the second documented bout of back pain in November 1987, but that it had been over a year since the previous bout of pain, so the two episodes were not likely related. She noted that the Veteran required medication twice during the next two months, but the pain responded well to the medications and he did not suffer debility due to the back condition until 10 years later. She noted that, “[f]rom 1987 until 1997, he had flare of back pain once or twice yearly, which is typical.”

The examiner concluded that the Veteran’s low back pain was less likely as not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in service and/or within one year of discharge. She also concluded that it is at least as likely as not permanently aggravated or a result of his occupation/manual labor from 1988 until 1997. She also concluded that the natural progression was not altered or worsened by any event and/or condition that occurred and/or expressed during active service.

She also noted that an etiologic diagnosis is not established for most patients with back pain, in whom episodes of back pain are self-limited and resolve without specific therapy. She further noted medical literature from the American Family Physician reporting that more than 70 percent of people in developed countries will experience low back pain at some time in their lives. Each year, 15 to 45 percent of adults suffer low back pain. Symptoms, pathology, and radiologic appearances are poorly correlated. Pain is nonspecific in about 85 percent of people. Acute low back pain is usually self-limiting.

The Court’s determination that the Board erred in failing to return the May 2013 examination for clarification appears to be based on the examiner’s assertion that, “[f]rom 1987 until 1997, he had flare of back pain once or twice yearly, which is typical.” To the extent that these flare-ups may suggest continuity of symptomatology since service, this claim must be remanded in order to obtain a clarifying opinion.

Because the issue of entitlement to service connection for an acquired psychiatric disorder is claimed as secondary to the lumbar spine disability, it is considered to be inextricably intertwined with the back claim. The acquired psychiatric disorder claim must also be remanded pending the resolution of the lumbar spine claim.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain any outstanding VA medical records (including any that were created after VA last obtained the Veteran’s records in October 2014) and associate these records with the claims file.

2. Ask the Veteran to fill out the appropriate authorization to allow VA to obtain any outstanding private medical records. The Veteran should also be notified that he may submit these records himself. After securing any necessary releases, request any identified records. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified.

3. Following completion of the above, arrange for the claims file to be sent to a medical professional with appropriate expertise to obtain an opinion with respect to the questions, below. If the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate examiner. The VA examiner is asked to thoroughly review the claims file, as well a copy of this REMAND. The examiner should note in the VA examination report that this action has been accomplished. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail.

Specifically, the examiner is asked to provide an opinion that addresses the following:

Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s low back pain can be etiologically linked to back pain he suffered during service based on a continuity of symptomatology since service?

When providing an answer, please discuss whether the Veteran’s flare-ups of back pain in the same location once or twice per year from 1987 until 1997 constitute a continuity of symptomatology of the same disability or whether they constitute separate acute instances of back pain. Please also consider the Veteran’s service treatment records, including the following:

(a) The July 1986 record noting that the Veteran had left-sided back pain for a few days with no inciting event and no trauma. He was diagnosed with left back pain and given parafon forte and bengay.

(b) The November 1987 record noting that the Veteran suffered a lumbar strain following two days of heavy lifting. He was given parafon forte and tolectin.

(c) The January 1989 record noting that the Veteran was diagnosed with a mild sacroiliac strain following reports of continuing low back pain for months with no trauma.

(d) The January 1989 lumbar spine x-ray noting that the Veteran’s lumbar spine and pelvis were normal.

(e) The August 1989 report of medical history for an Army Reserve physical noting that the Veteran reported a history of recurrent back pain and that his usual occupation was a product mover for Tyson Poultry.

(f) The August 1989 medical examination for the Veteran’s Army Reserve physical noting a normal spine on examination. The Veteran was assigned PULHES profiles of “1” for all systems, indicating a high level of medical fitness.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant sciences that are applicable in this case, which may reasonably explain the medical guidance in the study of this case.

4. After the development requested above has been completed, review the claims file and readjudicate the issues on appeal, including the issue of entitlement to service connection for an acquired psychiatric disability. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, 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 action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

_________________________________________________
DEBORAH W. SINGLETON
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 your appeal. 38 C.F.R. § 20.1100(b) (2016).

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