Citation Nr: 0004944 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-32 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from July 1947 to April 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. REMAND Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required where the condition noted in service is not shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). The veteran's service medical records show no complaint, diagnosis or treatment for a low back disability. The veteran's service personnel records show that he served at the Chosin Reservoir from October 27, to December 12, 1950. On VA examination in June 1954, he had no low back complaints. The veteran reported having no low back symptoms, as well as no back pain. Examination of the lumbar spine showed a normal lumbar lordosis with no paravertebral muscle spasm or tenderness. Flexion to 60 degrees produced pain in the left thigh. X-rays of the lumbar spine were normal. On VA examination in September 1996, the veteran reported that he had low back pain that radiated up and also radiated into the legs. Examination showed flexion to 80 degrees; backward extension to 30 degrees; and right and left flexion to 30 degrees. X-rays of the lumbar spine were normal. The finding was, status post prolonged cold exposure to lower back, buttocks, thighs, and legs in 1950, with historical evidence for significant cold injury; chronic low back syndrome, of uncertain etiology. The examiner stated that the veteran's symptoms, in view of the chronicity, must be attributed to the cold. In a September 1997 statement from the Mork Clinic, a private physician noted that the veteran had several complaints, including low back pain. The veteran reported that he had had the pain since being in Korea some forty years prior. Flexion was to 80 degrees, with hyperextension to 20 degrees. The examiner found that the veteran had chronic low back pain that the veteran dated to 1950. It was noted that if the veteran had the pain that long, and it developed after he was frozen from the waste down, it was somehow related to the lumbar plexus or even the soft tissue of the low back. It was stated that the veteran had no prior injury, no prior pain and from the time in Korea, he has had chronic back pain. The examiner opined that it seemed certainly that there was a temporal relationship between the onset of the back pain and the veteran's being frozen. In a September 1997 letter Brent S. Luginbill, D.C., reported that the veteran was a patient who had a history of ongoing low back pain since being frozen from the waist down in the Korean War in 1950. It was noted that treatment had been attempted with very few results. The veteran was stated to have chronic lumbosacral neuritis, and the examiner opined that this was directly attributable to being frozen in 1950. The veteran was examined by VA in May 1998. He reported that he began having low back pain after service discharge and that it increased in severity about 10 years prior. The examiner noted that the veteran had no limping and no difficulty walking down the hallway, getting up from the chair or getting up from the examining table. Examination of the back showed no abnormality. DTR's were symmetrical at 1+ in the lower extremities. Sensory was intact and muscle strength was 5/5. The assessment was, patient with low back pain of at least 10 years. Radiation to both legs worse when he stands for a long time or sits for a long time, and to some extent, when he walks. There was normal strength and sensation. The examiner opined that he was not aware of any cold injuries which presented with the veteran's symptoms and that he doubted that cold injury caused the veteran's symptoms. The veteran underwent a VA neurological consultation in July 1998. Examination showed full painless motion with some aching on returning to erect position. There was no tenderness. No neurological abnormalities were noted. The impression was, somatic pain syndrome, normal pulse deficits, normal neurologic function. An MRI performed in July 1998 showed the lumbar spine appeared normally aligned with some changes of disk dehydration but without loss of disk height. It was noted that there was no evidence of central spinal canal stenosis. There was some central disk bulging at the L5-S1, but without effacement of the thecal sac or nerve roots. The Board notes that service records shown that the veteran served in the Chosin Campaign in Korea and acknowledges that the veteran was exposed to very cold weather during that Campaign. However, it is noted that there are conflicting opinions concerning the etiology of the veteran's low back complaints. None of the above reported examiners have offered a well reasoned opinion concerning the diagnosis of the veteran's low back disability or the etiology of any disability found. Further, none of the examiners noted above reviewed the veteran's claims file in conjunction with examination of the veteran. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1999), the claims file must be made available to the examiner for review." VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). The duty to assist includes the duty to obtain adequate and contemporaneous VA examinations, including examinations by specialists when indicated, and to obtain medical records to which the veteran has referred or which may be pertinent to the issues. Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In light of the foregoing, the Board finds that further development, as specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should schedule the veteran for examinations by a board certified neurologist and a board certified orthopedic surgeon, if available, to evaluate the veteran's low back complaints. All indicated studies, including complete X-rays, should be performed. Range of motion should be documented in degrees and the orthopedic examiner should note any muscle spasms, painful motion or loss of lateral spine motion. The examiners must receive a copy of this remand, completely review the claims folder in conjunction with the examinations, and clearly differentiate all manifestations referable solely to the veteran's low back disability. The neurologist should document all neurological findings, and differentiate, to the extent possible, any manifestations referable to the veteran's back complaints. Any back disability should be documented, and a definitive diagnosis must be given. An opinion should be given as to whether it is at least as likely as not that any low back disability diagnosed is related to the veteran's exposure to cold while in service. In this regard, the examiners are referred to the opinions of the examiners noted in the examination reports of September 1996, September 1997, and May 1998, as well as the letter from Dr. Luginbill dated in September 1997. The examiners must reconcile any conflicting findings. A complete rationale for all opinions and conclusions expressed should be given. 2. After the examinations have been completed, the RO should review the examination reports to insure that they comply with the directives of this remand, and if any do not, it must be returned for corrective action. 3. Then the RO should take any other necessary action, and readjudicate the issue on appeal. After completion of the requested actions, the RO should review the evidence and determine whether the veteran's claim may be granted. If not the veteran and his representative should be provided with an appropriate Supplemental Statement of the Case. After allowing the veteran appropriate time to respond, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until he is notified by the RO. F. JUDGE FLOWERS 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) (1999).