Entitlement to service connection for a low back disability,
claimed as secondary to service-connected patellar femoral
syndrome of the knees.
The Veteran served on active duty from January 1981 to January
1984, and from February 2003 to September 2004.
This matter initially came to the Board of Veterans' Appeals
(Board) on appeal from a September 1999 decision of the RO that,
in pertinent part, denied service connection for a back
disability as not well grounded. The Veteran timely appealed.
On November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), which eliminated the well
grounded requirement, and provided for the re-adjudication of
claims denied as not well grounded between July 1999 and
November 2000. See Pub. L. No. 106-475, § 7(b), 114 Stat. 2096,
In July 2003, the Veteran testified during a hearing before the
undersigned in Washington, D.C. In July 2004, the Board remanded
the matter for additional development.
In June 2009, the Board again remanded the matter for additional
development. VA substantially complied with the previous remand
The issue of an earlier effective date for the award of
TDIU benefits (June 1, 2010) has been raised by the
record, but has not been adjudicated by the Agency of
Original Jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over it, and it is referred to
the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran and
her representative when further action is required.
The Veteran contends that her low back pain had its onset
initially in service, from training exercise in full gear,
although she did not seek medical treatment.
Service treatment records neither reflect any treatment for back
pain nor document any in-service back injury. The Veteran never
complained of back pain in service, and she did not report
recurrent back pain at the time of service discharge.
Examination of the Veteran's spine at the November 1983
separation examination was normal.
Following her service discharge, the Veteran reported that she
self-treated her back pain with over-the-counter medications and
heat pads and massages.
She is competent to testify on factual matters of which she has
first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362
Records in the claims file show that the Veteran originally filed
a claim for service connection for a back disability in April
On a "Report of Medical History" completed by the Veteran in
October 1987, the Veteran reported recurrent back pain five years
ago. The examiner's notation included no reference to back pain.
Lay evidence concerning continuity of symptoms after service, if
credible, is ultimately competent, regardless of the lack of
contemporaneous medical evidence. Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006).
Records show that the Veteran failed to report for a scheduled VA
examination in September 1994.
During a March 1996 VA examination, the Veteran reported a past
history of intermittent low back pain, dating back to 1982 or
1983, related to no specific injury. She recalled no X-rays,
diagnosis, or treatment. Following examination, the examiner
diagnosed status-post past history of persistent midline thoracic
and lumbar spine pain, probably secondary to chronic thoracic and
lumbar strain; rule out degenerative joint disease and other
structural abnormalities of the thoracic and lumbar spine.
VA treatment records show complaints of back pain in July 1999
and in August 1999. X-rays taken at that time revealed a normal
The report of an August 1999 VA examination includes a diagnosis
of chronic back pain; objective examination was normal.
In November 2003, the Veteran testified that her current back
disability was secondary to her service-connected knee
disabilities and altered gait.
During an October 2007 VA examination, the Veteran reported that
she first saw a doctor for back pain in 1984. She reported that
she had gait disturbance, due to her knees, and that this had
adversely affected her back. The examiner noted a slightly
waddling gait, but that the Veteran's spine posture was normal.
Although, in a January 2008 addendum, the October 2007 examiner
opined that the Veteran's current low back disability was not
likely related to the disability of her knees (patellar femoral
syndrome), there is no indication whether or not current low back
disability had its clinical onset or is otherwise related to
Accordingly, the case is REMANDED for the following action:
1. Return the claims file to the October
2007 VA examiner or, if that examiner is
not available, schedule the Veteran for a
new VA examination in order to determine
the nature and etiology of any low back
disability. The claims file and a copy of
this remand must be made available to and
be reviewed by the examiners in conjunction
with the examination. The examiner(s) must
indicate in the examination report that
the claims file was reviewed in conjunction
with the examination. All necessary tests
should be conducted. For any low back
disability exhibited, the examiner should
determine whether it at least as likely as
not had its clinical onset in service or is
otherwise related to active duty. All
opinions and conclusions expressed must be
supported by a complete rationale.
The examiner should reference evidence
summarized herein including:
* the Veteran originally filing a claim
for service connection for a back
disability in April 1984;
* On a "Report of Medical History"
completed by the Veteran in October
1987, the Veteran reported that she had
or had had recurrent back pain five
* the March 1996 VA examination report;
* VA treatment records dated in July 1999
and in August 1999 showing complaints of
back pain. X-rays taken at that time
revealed a normal lumbosacral spine;
* And the October 2007 VA examination
The examiner should reconcile any opinion
with the service and post-service treatment
records in the claims file and provide a
rationale for the opinions.
2. After ensuring that the requested
actions are completed, the RO or AMC should
re-adjudicate the claim on appeal. If the
benefits sought are not fully granted, the
RO or AMC must furnish a supplemental
statement of the case (SSOC), before the
claims file is returned to the Board, if
otherwise in order.
The Veteran 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. 2010).
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