Citation Nr: 0812783 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 04-26 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for spondylolisthesis, L5- S1, postoperative fusion (claimed as a back injury). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran had active military service from August 1956 to July 1975. This matter was last before the Board of Veterans' Appeals (Board) in January 2006, on appeal from a November 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2006, the Board reopened and remanded the claim for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.VA will notify you if further action is required on your part. REMAND In January 2006, the Board reopened the claim for service connection for spondylolisthesis, L5-S1, post-operative fusion (claimed as a back injury) for additional development, including to attempt retrieval of non-VA radiological studies conducted approximately two years after the veteran's military service. Although the RO/AMC afforded the veteran a VA medical examination, it did so without having obtained all relevant medical evidence. Because the Board cannot conduct effective appellate review of this issue, the claim must again be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the January 2006 remand, a request was made to obtain a 1977 back radiology study which was referenced by the veteran's private physician, Daniel R. McCready, M.D. in a January 2003 letter. Dr. McCready had reported that the veteran first consulted him in 1977 (i.e., approximately two years after military service), and that radiological studies conducted in 1977 showed "diffuse arthritis and evidence of degenerative disc disease." The claim has been denied on the basis that there is no competent medical evidence linking the back disorder to any incident of military service. However, Dr. McCready's January 2003 letter suggests that arthritis may have been present within two years of discharge from active duty. The law provides that a veteran who has 90 days or more of service may be entitled to presumptive service connection of a chronic disease that becomes manifest to a degree of 10 percent or more within one year from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. § 3.307. Arthritis (i.e., degenerative joint disease) is one of the chronic diseases for which such presumptive service connection may be granted. 38 C.F.R. § 3.309(a). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. This does not mean that any manifestation of joint pain will permit service connection of arthritis first shown as a clear-cut entity at some later date. 38 C.F.R. § 3.303(b). The law further provides that no presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. However, the law also provides that this will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. 38 C.F.R. § 3.307(c). It is therefore critical that VA obtain, or attempt to obtain the 1977 radiological studies referenced by Dr. McCready. Further, under the provisions of 38 U.S.C.A § 5103A, as enacted as part of the Veterans Claims Assistance Act (VCAA), VA must reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies and authorizes VA to obtain. Whenever VA, after making such reasonable efforts, is unable to obtain all of the relevant records sought, VA shall notify the claimant that it is unable to obtain records with respect to the claim, including an identification of the records it was unable to obtain; a brief explanation of the efforts that VA made to obtain those records; and a description of any further action to be taken with respect to the claim. 38 U.S.C.A § 5103A(b),(c). In sum, VA must attempt to obtain the records as alluded to by Dr. McCready. While the veteran underwent a VA examination in June 2006, the examination is not informed, given that there may be outstanding evidence. The medical record in service and since service show evidence of back complaints. What is of import in this case is for the examiner to opine, after a thorough review of the evidence, whether the veteran's current disorder(s) of the low back, if any, are related to service, after a review of the clinical evidence of record. Shipwash v. Brown, 8 Vet.App. 218, 222 (1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Given these deficiencies, this case is again REMANDED to the AMC/RO for the following action: 1.Request the veteran submit, or authorize VA to request and obtain the 1977 back radiology study reference by him in his August 2005 hearing testimony, and referenced in the January 2003 letter from Dr. McCready. 2. Following receipt of the veteran's response or actual receipt of the radiological study, the AMC/RO should contact examiner that evaluated the veteran in June 2006 and request that he provide an addendum based on the Board's January 2006 request. The examiner should again be asked to provide an opinion, based on the clinical evidence of record, as to whether the veteran has any disorder (s) of the back and if so, whether it/they are related to the veteran's active duty service. The examiner is to make specific reference to the veteran's service medical records, which contain references to low back pain and a mild muscle sprain. The opinion is to be made based on all clinical evidence of record, and not solely upon the veteran's account. A complete supporting rationale for all opinions expressed must be made. 3. If the examiner who examined the veteran in June 2006 is no longer available, the veteran should be provided additional VA examination which addresses all of the requests set forth in paragraph number two. 4. The AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures. 5. Upon completion of the requested development above, the AMC/RO should again review the claim. If the decision is adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case, which sets forth the applicable legal criteria pertinent to this appeal, and he should be given the opportunity to respond thereto. The veteran 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. 2005). _________________________________________________ VITO A. CLEMENTI 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).