Citation Nr: 0810657 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-01 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Kreitlow, Associate Counsel INTRODUCTION The veteran had active military service from November 1981 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the October 2004 Statement of the Case (SOC) identifies the April 2003 rating decision, in which the RO confirmed and continued its March 2002 denial of service connection for low back disability, as the rating action on appeal. Where, as here, however, pertinent evidence was presented or secured within one year of the date of the mailing of the notice of the initial decision, that evidence must be considered to have been filed in connection with the earlier claim. See 38 C.F.R. § 3.156(b) (2007); see also Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, finality has not attached and this appeal stems from the March 2002 rating decision. 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 The Board finds that remand is necessary in order to comply with VA's duty to notify and assist the veteran with her claim. First, the Board notes that, during the pendency of the veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), holding that, upon receipt of an application for service connection, VA is required to notify a claimant of what information and evidence will substantiate the elements of the claim including that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, because the Court's decision was issued in March 2006, i.e., many months subsequent to the RO's certification of this appeal to the Board in June 2005, it is not surprising that the veteran has not been notified of all the elements of her claim as required by the decision in Dingess. Second, the veteran has alleged a continuity of symptomatology since service of her low back disorder. The earliest treatment record in the claims file relating to this claimed condition is from July 2001, almost 13 years after her discharge from service. Recent medical evidence, however, indicates that there may be earlier medical treatment, e.g. chiropractic treatment. Thus the veteran should be contacted and told she should provide evidence of treatment for her low back disorder from the date of her discharge from service to July 2001. The Board notes that the veteran had previously identified treatment at Health First Medical Group from 1995 to 1997 for her low back disability. That medical care provider, however, only submitted two treatment records from June 1997 in response to VA's request for records, neither of which relate to the veteran's claimed low back disorder. Thirdly, the Board notes that the last VA treatment record in the claims file is from September 2001 from the VA medical facility in Jacksonville, Florida. Treatment records subsequent to that date may be highly probative to the veteran's claim. In addition, VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Upon remand, the veteran's VA treatment records from September 2001 to the present should be obtained. After the above has been accomplished, the veteran should be scheduled for a new VA examination. A medical opinion should be requested as to whether the veteran's current low back disorder is related to any injury or disease incurred in service. The Board notes that the veteran was provided a VA examination in March 2002. That examiner failed to find any current objective evidence of a low back disorder although he noted an x-ray report from August 2001 showing the veteran has "some mild scoliosis and mild retrolisthesis at L5-S1." The report of the August 2001 x-ray actually states that the impression was an essentially negative lumbosacral spine with a mild scoliosis, plus several millimeters retrolisthesis at the L5-S1 level. The examiner failed to explain why the scoliosis and retrolisthesis shown on this x-ray cannot be considered a source of the veteran's complaints of low back pain. In addition, the veteran submitted subsequent medical evidence consisting of the report of a magnetic resonance imaging (MRI) study conducted in September 2002 and an orthopedic surgeon's consult report from October 2002. The MRI revealed the veteran has congenital asymmetric segmentation of the lumbosacral spine; posterior left paracentral disk herniation at L5-S1 creating thecal sac indentation and impingement on the left S1 nerve root in the lateral recess; anterior disk herniations present at L1-2, L2-3, L3-4, L4-5 and L5-S1; degenerative spondylosis and rotoscoliosis; bilateral facet joint disease present at L4-5 and L5-S1; no significant central spinal stenosis; bilateral neural canal narrowing throughout the lumbar spine except at T12-L1; no nerve root impingement within the neural canals; multiple healed vertebral end-plate fractures allowing Schmorl's nodes present between T11 and L2; and unhealed fractures of the anterosuperior borders of the L2, L3, L4 and L5 vertebral bodies. After examining the veteran and reviewing her x-rays and MRI, the orthopedic surgeon diagnosed the veteran to have degenerative disc disease, L5- S1, left, and scoliosis. His recommendations were either a series of epidural steroids or surgical decompression of the disc. This evidence, which clearly shows the veteran has a current low back disorder, was not before the March 2002 VA examiner. Thus the evidence establishes that the veteran has a current a low back disorder. In addition, the service medical records show many complaints of low back pain. Some of these complaints, however, were related to other causes, usually a urinary tract infection. They do, however, show that the veteran was seen in March 1986 with complaints of low back pain. It was noted that her history was positive for low back pain after a motor vehicle accident and recurrent urinary tract infections. The motor vehicle accident this record appears to refer to is one from October 1984. The service medical records show the veteran was also in a motor vehicle accident in June 1984, but that she denied any back pain at that time. The veteran was diagnosed to have a lumbar sprain/strain and mechanical back pain. At her separation examination conducted in September 1988, the veteran reported having a history of recurrent back pain on her Report of Medical History, and the examiner noted mechanical back pain. The actual examination report, however, failed to make any specific finding of a low back disorder. Given that the veteran has low back disability and there is evidence of multiple complaints and treatment of low back pain and a diagnosis of lumbar sprain/strain in service, a medical opinion as to whether the veteran's current low back disorder (diagnosed as degenerative disc disease of the L5- S1) is related to her complaints in service is necessary to render a full and fair decision on the veteran's claim. The Board notes that the examiner should observe the veteran's history of being involved in motor vehicle accidents. As noted previously, the service medical records show that she was involved in several motor vehicle accidents. However, there is also a notation in the VA treatment records that the veteran was involved in a motor vehicle accident in September 2001. She has also referred a past history of multiple motor vehicle accidents as seen in a January 1999 VA Women's Clinic treatment note and a July 2001 VA primary care treatment note. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with notice that is compliant with Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Contact the veteran and request that she identify any medical care providers, VA or non-VA, which treated her low back disorder for the period of September 1988 and July 2001. The veteran should be asked to complete a release form for each private medical care provider she identifies authorizing VA to request these records directly from them. She should be advised that she can submit any private medical treatment records herself in lieu of the complete release forms. If the veteran provides completed release forms, the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 3. Obtain the veteran's medical records from the VA medical facility in Jacksonville, Florida, for treatment related to complaints of low back pain from September 2001 to the present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 4. When the above steps have been accomplished and any available evidence has been obtained, the veteran should be scheduled for a VA spine examination. The claims file must be provided to the examiner for review in conjunction with the examination, and the examination report must indicate that said review was accomplished. After reviewing the file including this remand, the examiner should obtain a full history from the veteran, including her history of involvement in motor vehicle accidents both during and after service and what, if any, injuries she received therefrom. Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the veteran's current low back disorder (diagnosed as degenerative disc disease) is related to any disease or injury incurred during service, specifically whether it is related to any injury received in one of the motor vehicle accidents that the veteran was involved in during service, or whether the current low back disorder is related to an intercurrent injury, such as a post-service motor vehicle accident. 5. Then, after taking any actions needed to ensure VA's duty to assist and notice obligations are accomplished and that the VA examination report is complete, the veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the veteran and her representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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 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). _________________________________________________ STEVEN D. REISS Acting 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) (2007).