Citation Nr: 0810435 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-25 213A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected dorsolumbar strain. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel REMAND The veteran served on active duty for training (ACTDUTRA) from July 1998 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board denied the veteran's claim in May 2006. In November 2007, the veteran's attorney and VA's General Counsel filed a joint motion with the United States Court of Appeals for Veterans Claims (CAVC) to vacate the Board's decision and remand the case. CAVC granted the motion. The basis for the motion included VA's failure to issue statements of the case (SOCs) as to denials of service connection for thoracic strain and cervical spine strain. The case was also remanded for VA to obtain a new medical examination, and to assist the veteran in obtaining private orthopedic and chiropractic records. The Board notes that the veteran submitted a statement in October 2002 expressing his disagreement with an August 2002 denial of service connection for thoracic strain. Although service connection was thereafter granted in January 2003 for thoracolumbar strain, it appears that the parties to the joint motion agreed that the claim of service connection for thoracic strain had not been resolved by the January 2003 action. It was agreed that a statement of the case is now required. The claimant also submitted a statement in December 2003, which has now been construed as an expression of disagreement with a denial of service connection for cervical spine strain. The Board will therefore remand the issues of entitlement to service connection for thoracic strain and cervical spine strain for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1990). (These issues have not been listed on the title page of this decision because, absent a substantive appeal, the Board does not have jurisdiction. Bernard v. Brown, 4 Vet. App. 384 (1994); Hazan v. Gober, 10 Vet. App. 511 (1997).) The veteran was afforded a VA examination in June 2005. The parties to the November 2007 joint motion have agreed that the examiner failed to reconcile her findings with the results of a March 2002 VA examination which revealed evidence of minimal scoliosis of the lumbar spine, or with VA outpatient treatment reports that reflected complaints of back pain. The appellant should be afforded another VA examination in order to assess the current status of his dorsolumbar strain. The Board notes that invoices from Arlington Chiropractic Clinic, Ohio Orthopedic Center of Excellence, Wedgewood Urgent Care, Riverside Methodist Hospital, Coshocton County Memorial Hospital, and Mount Carmel Health have been associated with the claims file. No private treatment reports from any of the above-listed private facilities were associated with the claims file. VA outpatient treatment reports dated through January 2006 were associated with the claims file. Any VA records promulgated after January 2006 should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Re-examine the issues of entitlement to service connection for thoracic strain and cervical spine strain addressed by the veteran in statements dated in October 2002 and December 2003. If no additional development is required, prepare a SOC in accordance with 38 C.F.R. § 19.29 (2007), unless any matter is resolved by granting the benefit sought, or by the veteran's withdrawal of the NODs. If, and only if, the veteran files a timely substantive appeal, the issues should be returned to the Board. 2. The veteran should be informed as to the requirements for the award of a rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Veterans Claims Assistance Act of 2000 notice should be issued that comports with the recent holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 3. Contact the veteran to obtain the names and addresses of all medical care providers who have treated him for a back disability. After securing the necessary releases, obtain those records that have not previously been secured including private chiropractic records from Arlington Chiropractic Clinic and private treatment records from Ohio Orthopedic Center of Excellence, Wedgewood Urgent Care, Riverside Methodist Hospital, Coshocton County Memorial Hospital, and Mount Carmel Health. Any pertinent records from VA prepared after January 2006 should also be obtained. If any records are unavailable, a negative reply should be included in the claims file and the claimant should be told of the result. He should be given opportunity to obtain the records. 4. After the above-requested development is accomplished, arrange for the veteran to undergo a VA spine examination by a physician with appropriate expertise to determine the current degree of disability experienced by the veteran due to his service-connected dorsolumbar strain. The examiner should be requested to reconcile his/her findings with the results of a March 2002 VA examination, a June 2005 VA examination, VA outpatient treatment reports, and any private treatment reports that reflect treatment for his dorsolumbar strain. All indicated studies, tests, and evaluations deemed necessary should be performed and the results noted in the examination report. All functional losses due to pain, fatigability, weakness, etc., should be equated to limitation of motion beyond the limitations shown clinically. (The appellant is hereby notified that it is his responsibility to report for scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2007).) 5. Thereafter, review the claims file to ensure that the requested development has been completed. In particular, review the requested examination report to ensure that it is responsive to and in complete compliance with the directives of this remand, and if it is not, take corrective action. 6. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter 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 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. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2007).