Citation Nr: 0939638 Decision Date: 10/19/09 Archive Date: 10/28/09 DOCKET NO. 01-00 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to June 1982 and from January 1983 to December 1988; he served thereafter in the Air Force Reserves (USAFR), and apparently had a period of Special ADS (special active duty) in March 1994 during which the Veteran sustained injury in a motor vehicle accident. The Veteran had additional MPA (Military Personnel Authorization) days and special ADS (active duty service) during periods from April 1994 through November 1994. The Veteran's USAFR service, and any periods during which he may have been assigned to active duty, have not been verified. The Veteran was medically discharged from the USAFR in June 1995. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO) which denied a request to reopen a claim for service connection for a back disorder In August 2003, the Board reopened the claim of entitlement to service connection for a back disorder and Remanded the reopened claim to be further developed. In January 2006 and in September 2006, the Board again Remanded the claim. Unfortunately, the claim must again be Remanded. 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 As the Veteran's representative noted in the September 2009 Informal Hearing Presentation, the Board's Remands have directed development of medical opinion as to the etiology and onset of a "back disorder." The Board agrees with the representative's contention that additional medical opinion is required. Initially, when the Veteran sought service connection for a back disorder, the record disclosed that the Veteran's military service ended in 1988. The Veteran was granted service connection for a cervical spine disorder incurred during his period of service that ended in 1988. After the Veteran submitted the January 1995 claim for service connection for injury manifested by muscle spasm at T12-L1, the VA examiner opined that the injury sustained in 1994 was unrelated to the Veteran's active service, which ended in 1988. However, the Veteran then established that he was in some type of military status in March 1994, and he was treated at a military facility, Howard Air Force Base, Panama, for injury reported as having been incurred in a motor vehicle accident during the March 1994 orders. A medical opinion which considered the Veteran's March 1994 motor vehicle accident as having incurred during military service was rendered in February 2006. However, after that opinion was rendered, in April 2006, the Veteran identified numerous additional relevant clinical records. The Veteran is entitled to an opinion which considers all of the relevant clinical records and which are based on an accurate summary for the examiner of the Veteran's periods of active and inactive duty is required. The medical opinion must also consider all possible theories of service connection, including secondary service connection and aggravation. 38 C.F.R. § 3.310 (disability which is proximately due to or the result of a service-connected disease or injury shall be service connected); Allen v. Brown, 7 Vet. App. 439 (1995) (secondary service connection on the basis of aggravation is permitted). No records have been obtained from the Veteran's reserve unit or other official source, but the Veteran has provided an AF Form 938, Request for Active Duty Training/Active Duty Tour, which reflects that the Veteran had orders to report on March 9, 1994, for Special ADS, with the orders ending on March 30, 1994. The Veteran has provided additional orders, with separate AF Form 938s, for several periods through November 1994. Further clarification of the Veteran's service while enlisted in the Air Force Reserve prior to his medical discharge in June 1995 is required so that accurate directions may be provided to the examiner who is requested to render the required medical opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran's reserve service personnel records, including records which would show order to active duty during reserve enlistment, and any clinical records of medical examinations, evaluations, and treatment rendered to the Veteran at military facilities during his reserve enlistment which are not already associated with the service treatment records, including the medical evaluation conducted prior to his medical discharge from the USAFR in June 1995, should be requested from the Air Reserve Personnel Center, HQ ARPC/DPSCA/B, 6760 E. Irvington Place, Suite 4600, Denver, CO 80280-4600. A copy of the DD Form 256AF, which the Veteran's December 1995 discharge states will be issued, must be obtained. If the Air Reserve Personnel Center is unable to locate personnel or clinical records for the Veteran, the Center should be asked to identify the location to which the records have been retired. 2. The Veteran should be afforded an opportunity to identify any additional non-VA treatment records relevant to treatment of a back disorder since April 2004, the date on which he last identified relevant non-VA clinical records. 3. VA clinical records from January 2007 to the present should be obtained. All records of the Veteran's pain clinic treatment 4. The RO should summarize the Veteran's periods of active duty, including any periods of military service which may be considered active duty while the Veteran was enlisted in USAFR, if official documents obtained do not include documents which clearly reflect each of these periods. This summary of the Veteran's active service periods, or copies of the official documents reflecting each period of active service and other verified service, should be provided to each examiner who conducts a VA examination. The RO should also prepare a complete list of the Veteran's service-connected disabilities, to include notation of the cervical spine disability for which service connection has been granted. This list must be provided to each examiner who conducts a VA examination. 5. The Veteran should be afforded VA examination of the spine. The claims folder should be made available to the examiner for review before the examination. The examiner should review the service medical records, records of clinical care rendered during any period of performance of reserve service or ordered active duty during a period of reserve enlistment, post-service medical records, the Veteran's statements, and relevant evidence of record, including all records pertaining to radiologic examination of the spine. Discussion of the review of the record should include, at a minimum, discussion of the March 30, 1994 treatment record from Howard Air Force Base, Panama (vol. I of the claims files), reserve service clinical records (service treatment records envelope), post- service records (including private treatment records dated in 1995 and 1996 in Spanish, with translations, vols. II & IV), May 2004 VA medical opinion (vol. III), February 2006 VA medical opinion (vol. IV), and pain clinic records (vols. IV, V primarily). Review all records obtained during the course of this Remand. If diagnostic testing is necessary, such testing should be conducted. Then, the examiner should address the following questions: a) Assign a diagnosis for each current disorder of the back or spine (excluding service-connected cervical spine disability). (b) For each diagnosed disorder of the spine or back, state when the disorder first had its onset, and describe the probable etiology of the disorder. Then, provide the following opinions: (i) Is it at least as likely as not (i.e., probability of 50 percent, or greater) that the Veteran has a current back disorder (excluding the cervical spine) which was first manifested during a period of active service, with chronic and continuous symptoms since the Veteran's service discharge? Please be specific in the identification of all relevant time periods. (ii) Is it at least as likely as not (i.e., probability of 50 percent, or greater) that the Veteran has a current back disorder (excluding the cervical spine) which is a result of any period of the Veteran's active service or the result of any disease or injury incurred during a period of inactive service (active duty for training, annual training, inactive duty for training)? (iii) Is it at least as likely as not (i.e., probability of 50 percent, or greater) that the Veteran has a current disorder which is secondary to or aggravated by any service- connected disability? The medical basis for all opinions expressed should be discussed for the record. It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 6. When all directed development has been conducted, readjudication should be completed. If such action does not resolve the appeal, a supplemental statement of the case should be issued to the appellant and her representative. An appropriate period of time should be allowed for response. 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. 2009). _________________________________________________ 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) (2009).