Citation Nr: 0709015 Decision Date: 03/28/07 Archive Date: 04/09/07 DOCKET NO. 05-08 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for spondylolisthesis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from November 1986 to December 1993. The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Louis, Missouri, that denied the benefit sought on appeal. The Board notes that at the September 2005 hearing the veteran testified he has bilateral radiculopathy in his legs, possibly as related to his back condition. This issue is referred to the RO for appropriate action. In addition, a June 2000 VAMC treatment note indicates the veteran has an ankle condition that he relates to his back condition. This issue is also referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran is seeking service connection for his spondylolisthesis. To establish service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. A remand is required in order to afford the veteran a VA examination to determine the nature and etiology of his disability. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the veteran has a diagnosis of spondylolisthesis, recently documented in an October 2005 treatment record of J. Mattingly, M.D. There is also evidence of a back condition in service, although it is unclear whether the problem would be considered acute and transitory. On his Report of Medical History upon entry into service the veteran reported no recurrent back pain. Shortly thereafter in December 1986 the veteran reported back pain. In February 1987 no abnormalities of his spine were noted on clinical evaluation. His spine was also found normal on examination in August 1989. In August 1990 he complained of tightness, pressure, and low back pain and was diagnosed with a mild left side lower back strain. In September 1990 his low back strain from the month prior was found to be resolved and in September 1991 no abnormalities of the spine were noted on examination. Further, the medical evidence is unclear as to the existence of a nexus. The October 2005 report of Dr. Mattingly found the veteran is a "patient with spondylolytic spondylolisthesis likely from adolescence resulting from extension-type injuries possibly from the military." While this statement does suggest a positive nexus, it is unclear whether Dr. Mattingly believes the spondylolisthesis pre- existed service because it arose adolescence, or whether it resulted from extension injuries in service, or whether it both pre-existed service and was aggravated by military events. The statement is also nebulous in its use of "possibly;" a more clear assessment of the likelihood is needed in order to properly adjudicate the claim. The only other objective nexus opinion associated with the file is also nebulous. A November 2005 report of D. Robert Kuhn, D.C., D.A.C.B.R., found that, upon review of the veteran's records, the information presented "was inadequate to determine when Mr. [redacted] acquired spondylolisthesis." At the hearing the veteran testified he has medical expertise in this area and that a positive nexus does exist. In particular, he stated his activities in pulling refueling hoses from refueling units and moving panographs around caused or contributed to the injury to his back. In a March 1999 VAMC treatment note the veteran stated his back condition is related to an instance in 1989 or 1990 when he injured his back and neck during a parachute jump. For all of these reasons, clarification is needed as to the existence of a nexus between the veteran's current diagnosis and in service events. The veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2006). Further, during the pendency of this appeal the Court issued Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice and assistance requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to the evaluation and effective date that could be assigned in a service connection claim. Notice needs to be provided to the veteran in this regard. Accordingly, the case is REMANDED for the following action: 1. Afford the veteran a VA examination. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. Ask the examiner to confirm and/or identify the diagnosis of any back condition, including spondylolisthesis, that the veteran may have. The examiner is requested to review all pertinent records associated with the claims file, and to reconcile service medical records, and address the October 2005 nexus opinion of J. Mattingly, M.D., and the November 2005 nexus opinion of D. Robert Kuhn, D.C., D.A.C.B.R., and offer comments and an objective medical opinion as to etiology of the back condition, and consider whether the veteran entered service with the back condition if this is possible. If so, the examiner is requested to indicate whether the back condition increased in severity during service, and if it did, whether the increase in severity represented a chronic worsening of the disorder or the natural progress of the disorder. If the veteran did not enter service with a back condition, the examiner is requested to offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any current back condition is in any way causally or etiologically related to the symptomatology shown in the service medical records. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 2. Provide the veteran with proper notice of the information or evidence needed to establish a disability rating and/or effective date for the claims on appeal pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). After all of the above actions have been completed, a corrective notice and assistance letter has been issued, and the veteran has been given adequate time to respond, readjudicate his claim. If the claim remains denied, issue to the veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).