Citation Nr: 0810625 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-38 509A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran had active service from April 1945 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision in which the RO implicitly granted the veteran's petition to reopen his claim for service connection for a low back disability but denied the claim on the merits. The veteran filed a notice of disagreement (NOD) in July 2003 and the RO issued a statement of the case (SOC) in January 2004. After new evidence was received in February 2004, the RO issued a supplemental SOC (SSOC) in November 2004 that reflected the continued denial of the claim for service connection. The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2004. In June 2006, the veteran and his wife testified during a hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. In August 2006, the undersigned VLJ granted the motion of the veteran's representative to advance this appeal on the Board's docket, pursuant to the provisions of 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2007). In February 2007, the Board reopened the claim for service connection for a low back disability, and remanded the claim for service connection, on the merits, to the RO ( via the Appeals Management Center (AMC), in Washington, DC) for additional action. After accomplishing some of the requested action, the AMC continued the denial of the veteran's claim (as reflected in the October 2007 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. For the reasons expressed below, the matter remaining on appeal is, again, being remanded to the RO via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND Unfortunately, the claims file reflects that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the claim. A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board's February 2007 remand, the Board directed the RO to obtain a medical opinion as to whether the veteran has a current low back disability which is medically related to his active military service, to include the spinal anesthetic administered during his May 1945 hemorrhoidectomy. The Board also specifically requested that the VA examiner consider and address Dr. S.G.'s July 1956 letter and Dr. K.P.'s December 2003 and February 2005 letters. The Board notes that, in his July 1956 letter, Dr. S.G. stated that he had been treating the veteran for low back syndrome for the past 17 months, and that the veteran had two spinal injections given during an operation in 1945, and that he had experienced pain localized to the area of the injections since that time. Dr. S.G. opined that the veteran's low back syndrome was related to the spinal injections. Regarding the letters from Dr. K.P., in his December 2003 letter, Dr. K.P. stated that the veteran suffered from severe, chronic low back pain, and that a May 2003 MRI revealed spondylosis, stenosis, and multiple areas of degenerative joint disease. He opined that the veteran's pain was more likely than not connected to his military service in World War II in which he had a back injury. In his February 2005 letter, Dr. K.P. reiterated that the veteran had severe, chronic low back pain, with L1-2 stenosis demonstrated on MRI, and opined that this was a service- connected condition. Pursuant to the Board's remand, the veteran was afforded a VA examination in September 2007. The examiner acknowledged review of the claims file, specifically noting evidence of a hemorrhoidectomy in service, with an otherwise negative separation examination, and no evidence of any significant low back pain problems until about 2002. The examiner diagnosed degenerative disc disease of the lumbosacral spine at L1-2, L4-5, and L5-S1 levels, with herniated nucleus pulposus at L4-5 level and with spinal stenosis at L1-2 level. He opined that the veteran's current spinal condition is not related to military service as any spinal anesthesia could not possibly be the reason of any longstanding spinal problems except for a few days following the anesthesia, and even that was not actually noted in the service medical records. The examiner added that, in his opinion, it was quite clear that the veteran's significant spinal problems started much later, as could be expected in his age group. However, the Board notes that the examiner did not acknowledge or discuss the July 1956, December 2003, or February 2005 letters from the veteran's physicians. Rather, the examiner's opinion appears to be based primarily on the premise that there was of any significant low back pain problems until about 2002, a premise that is contradicted by information contained in Dr. S.G.'s July 1956 letter. Under these circumstances, another remand of this matter, for the RO to obtain a supplemental medical opinion from the September 2007 VA examiner, if available, is warranted. In rendering the supplemental opinion, the examiner should not only specifically consider and address the July 1956, December 2003, and February 2005 letters addressed above, but also, the May and June 2006 letters from Dr. K.P. which have been associated with the claims file. In the May 2006 letter, Dr. K.P. stated that he had reviewed the military record and it was his medical opinion that the veteran's low back pain is the result of his military service in World War II. In his June 2006 letter, Dr. K.P. stated that the veteran had had chronic, sciatic low back pain since an epidural received while in the military, and that it is more likely than not that his low back pain was caused by this epidural. The RO should arrange for the veteran to undergo VA examination only if the September 2007 VA examiner is not available, or the designated physician is unable to provide the requested opinion without examining the veteran. If further examination is arranged, the veteran is hereby advised that failure to report to any scheduled examination, without good cause, shall result in a denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. A review of the claims file also reveals that there may be pertinent Federal records outstanding. In this regard, during the June 2006 hearing, the veteran stated that he started using the VA healthcare system after he retired, initially receiving treatment at the VA hospital in Northport. The veteran indicated that he received treatment at that facility about seven or eight years earlier, and his wife added that he had been treated there sometime in the late 1990s. He added that he later moved over to the Brooklyn VA Medical Center (VAMC). During the September 2007 VA examination, the veteran reported that he was receiving treatment at the Brooklyn VAMC, and was last seen about one month earlier. Records of VA treatment from the Brooklyn VAMC, dated from November 2002 to June 2007, have been associated with the claims file. However, the veteran's statements during the June 2006 hearing and the September 2007 VA examination reflect that treatment records prior to November 2002 are available from the Northport VAMC, and that more recent records from the Brooklyn VAMC are available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent treatment records from the Northport VAMC since the late 1990s, and from the Brooklyn VAMC since June 2007, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. To ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the veteran to submit all pertinent evidence in his possession (not previously requested), and ensure that its notice to the veteran meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as regards the five elements of a claim for service connection- particularly, disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain all records of evaluation and/or treatment of the veteran's low back disability from the Northport VAMC (since the late 1990s), and from the Brooklyn VAMC (since June 2007). The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for a low back disability that is not currently of record. The RO should invite the veteran to submit all pertinent evidence in his possession, and notify the veteran of the type of evidence that is the veteran's ultimate responsibility to submit. The RO should ensure that its notice meets the requirements of Dingess/Hartman (cited to above)-particularly as regards assignment of disability ratings and effective dates, as appropriate. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. The RO should assist the veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, the RO should forward the claims file to the examiner that examined the veteran in September 2007, if available. Based on review of the claims file, the physician should clearly identify all disabilities affecting the veteran's low back. With respect to each such diagnosed disability, the physician should provide an opinion as whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is medically related to the veteran's active military service, to include the spinal anesthetic administered during his May 1945 hemorrhoidectomy. In rendering the requested opinion, the physician should consider and address Dr. S.G.'s July 1956 letter and Dr. K.P.'s December 2003, February 2005, and May and June 2006 letters. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. If further examination of the veteran is deemed necessary, the RO should arrange for the veteran to undergo examination, by a physician, to obtain the above-noted opinion. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail and correlated to a specific diagnosis. 5. If the veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim. If the veteran fails, without good cause, to report to any scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim for service connection, on the merits, in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2007). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).