Citation Nr: 1009831 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 95-42 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Daniel Krasnegor, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from a November 2000 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. An October 2002 Board decision found that the Veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for a low back disability since the most recent denial of reopening of that claim in October 1999 but denied service connection for a low back disability on the merits. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court), which in a May 2004 Order vacated the Board's decision and remanded the matter for compliance with 38 U.S.C.A. § 5103(a) of the Veterans Claims Assistance Act of 2000 (VCAA). In a March 2008 per curiam opinion, the United States Court of Appeals for the Federal Circuit (Federal Circuit) summarily affirmed the Court's May 2004 decision. Subsequently, in October 2008 the Board remanded the claim for further development. A June 2009 Board decision again found that new and material evidence had been submitted to reopen the claim and denied the claim on the merits. The Veteran appealed that Board decision, and pursuant to a January 2010 Joint Motion for Remand, the Court vacated the June 2009 Board decision and remanded the claim to obtain the Veteran's service personnel records and to address lay evidence on file. In the Joint Motion it was stipulated that "[t]he parties agree that the Board's decision that the Appellant is not entitled to service connection for a low back disability should be vacated and remanded for development and readjudication in accordance with the foregoing discussion." The Board finds that it is clear from "the foregoing discussion" within the Joint Motion for Remand that upon remand of the claim back to the Board, the Board is to discuss entitlement to service connection for a low back disorder on the merits. In this regard, the Board has twice before found that the additional evidence received since the October 1999 rating decision is new and material for the purpose of reopening the claim. Accordingly, the issue on appeal is limited to addressing the claim on the merits. 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 In part, the Joint Motion stated that because the Veteran had stated that following two inservice back injuries he had been placed on light duty for the remainder of his career during service, the Veteran's service personnel records should have been obtained prior to the Board's having adjudicated the claim on the merits. In this regard, the Board notes that following a March 2006 request, the National Personnel Record Center (NPRC) stated that it had conducted an extensive and thorough search for its records and was unable to locate the records requested (i.e., the Veteran's service personnel records in conjunction with a claim for service connection for PTSD). On the basis of the request presented, the NPRC concluded that the records either do not exist, the NPRC did not have them, or that further efforts to locate them at the NPRC would be futile. Nevertheless, the Joint Motion, which has been approved by the Court, instructs the Board to remand the case for the purpose of obtaining the Veteran's service personnel records. Also, the evidence on file indicates that in 1979 the Veteran incurred two work-related injuries. A May 1984 statement from a private chiropractor reflects that the Veteran had first been seen in January 1979 while employed by Mountain States Fence Company. His treatment had extended through September 1979 and it was felt that he would still have a very weakened structural problem that would require proper follow-up care and a maintenance program. Other than the service treatment records, there is no evidence prior to 1979 that the Veteran had low back disability. Also, since the Veteran apparently sustained work-related injuries, it is expected that he would have filed one or more claims for Workman's Compensation. Accordingly, the records of any Workman's Compensation claim(s), including any medical records associated therewith, could prove invaluable in adjudicating this claim and, so, should be obtained. Assuming additional evidence is obtained, further examination of the Veteran is needed for an examination which encompasses all evidence now on file and which may be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. The RO should take the appropriate steps to obtain the Veteran's service personnel records. If necessary, request that the NPRC re- state whether the service personnel records (1) cannot be located, (2) that the National Personnel Records Center does not have the service personnel records, and (3) whether further efforts to locate and obtain those records would be futile. 2. Contact the Veteran and inquire whether he has copies of his service personnel records and request that if he does, that he should submit duplicate copies of all such records to the RO. 3. The Veteran should be requested to provide as much identifying information as possible concerning any Workman's Compensation claims he has filed since his discharge from military service in October 1971, to include any claim(s) filed for one or more job-related back injury(ies) in 1979. This should include the claim number or other identifying information as to the claim(s) as well as all clinical sources involved in treatment or evaluation relevant to either such injury(ies) or such claim(s). If sufficient information is not provided by the Veteran, request the Veteran to provide the mailing address of his employer in 1979 and take the appropriate steps to contact the employer to obtain as much information as possible regarding the Veteran's apparent work-related back injuries in 1979. If necessary, take the appropriate steps to contact the appropriate state agency to obtain all records pertaining to any Workman's Compensation claim(s) filed by the Veteran for any injury(ies) sustained in 1979. Obtain any Workman's Compensation decision and all associated records. 4. Make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA examination to obtain a medical opinion concerning the nature, etiology, and probable time of onset of any low back disorder that the Veteran now has. The VA examiner should indicate whether it is at least as likely as not that any such disorder currently present is etiologically related to the Veteran's military service, including any events or incidences during service, e.g., his inservice muscle strains. In making these determinations, the VA examiner should review and consider: The May 1984 statement of a private chiropractor that, after two work- related back injuries, the Veteran still had a very weakened structural problem; The undated statement of a VA Chief of Neurology that the Veteran had a history of inservice back trauma which "may have" contributed to or accelerated advancement of degenerative joint disease of the lumbar spine; The VA examination in February 2002 which found that (a) the Veteran's inservice injuries were not severe but acute and (b) at service discharge his spine was normal and (c) he had not had treatment for back problems until his postservice work-related injuries, and (c) that it would have been difficult to work for a fencing company if had had significant low back pain; that his current low back difficulty was not the result of inservice injuries; The VA examination in January 2009 when it was noted that the May 1984 statement of a private chiropractor reflects that the first evidence of any injury to the vertebrae was the postservice injuries in 1979 and so the current low back disability was less likely than not related to the inservice soft-tissue injuries and most likely related to the injuries in 1979. Any inconsistencies between the findings, diagnoses or opinions of the foregoing should be explained or reconciled. The rationale for all opinions expressed should be discussed. If, however, no opinion can be rendered, please explain why this is not possible. The examination report must confirm that the claims folder was reviewed. 5. After the above development has been completed, readjudicate the claim. If the benefit remains denied, furnish the Veteran and his attorney a Supplemental Statement of the Case and return the case to the Board. 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). _________________________________________________ D. C. Spickler 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).