Citation Nr: 0813278 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-42 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a thoracic and lumbar spine disorder, to include degenerative disc disease. 2. Entitlement to service connection for residuals of a fractured nose with deviated septum. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from January 1953 to April 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 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 veteran contends that he has a current thoracic and lumbar spine disorder and residuals of a fractured nose that are related to an in-service accident which required hospitalization. Unfortunately, VA has been unable to obtain the veteran's service medical records due to a 1973 fire at the National Personnel Records Center (NPRC). Thus, there is no evidence, other than veteran's own statements, that he was hospitalized during service for treatment of a spine and/or nose injury. Although the Board may accept the veteran's statements regarding his in-service hospitalization as credible, as a layperson, he is not competent to testify as to the diagnosis provided during such hospitalizations. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder). Thus, the Board requires additional evidence confirming the veteran's in-service hospitalization. The RO made a formal finding of unavailability in September 2003 with respect to the veteran's service medical records. In June 2005, the RO asked that the veteran complete NA Form 13055 and requested that he provide his unit or organization assignment during treatment subsequent to the claimed injuries. The Board notes that the RO received no response from the veteran with regards to its June 2005 correspondence seeking information. However, the Board observes that the veteran has submitted two written statements, dated March and September 2003, in which the veteran appears to assert that he injured his spine and nose at Ft. Hood after returning from Korea. He claimed in his March 2003 statement that he was hospitalized for two weeks at Ft. Hood prior to his separation from active service. The Board observes that the September 2003 request for service records was limited to service medical records. The Board notes that clinical records may be located in a veteran's personnel file. As such, the Board concludes that all efforts to reconstruct the veteran's service records have not been exhausted. Moreover, the veteran's personnel records may contain information regarding his unit or organization at the time of his injuries in Ft. Hood. If so, unit histories, including sick call and morning reports, may be obtained which verify his claimed hospitalizations and spine and nose injuries. In requesting such efforts be made to locate records which might verify the veteran's statements, the Board observes that in a case in which a veteran's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist him in the development of his claim. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened duty includes the obligation to search for alternative medical records. See Moore v. Derwinski, 1 Vet. App. 401 (1991). The Board notes that evidence which verifies the veteran's claimed in-service injuries will not be sufficient to substantiate his claim based on the current record of evidence. This is especially true given the nearly thirty year lapse in time between the veteran's separation from service and the first recorded evidence of treatment for arthritis. Rather, if the AOJ obtains evidence which indicates the veteran suffered from a spine and/or nose injury in service, the Board is satisfied that the evidence of record requires VA to assist the veteran by providing a VA examination and opinion. VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the veteran's statements regarding an in-service spine and/or nose injury can be verified, he has met all three of the above requirements. The Board observes that the April 2003 VA examination is insufficient to award service connection because it does not provide an opinion as to whether or not the veteran's current disabilities are related to his active service. Thus, additional evidence, namely a new VA examination, is needed for the Board to make a decision. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran notice informing him that he may submit alternative forms of evidence to verify his spine and/or nose injuries, including lay statements from other individuals he served with while on active duty. See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that, where a veteran's service records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony, to support his claim). In addition, request that the veteran provide the dates of his spine and nose injuries, as well as any hospitalization, within a three-month timeframe. 2. Request the veteran's basic and extended service personnel records, to include any administrative remarks and physical profiles. 3. Based on the veteran's response, search clinical records of the hospital at Ft. Hood as well as sick call and morning reports for the veteran's unit. 4. If the veteran cannot provide a sufficient response, to the extent possible, utilize information from the veteran's March and September 2003 statements, as well as that contained in his personnel records, to attempt to verify the veteran's claimed hospitalization. 5. If, and only if, evidence is obtained which indicates that the veteran was hospitalized for a spine and/or nose injury, schedule him for a VA examination for the purpose of ascertaining the existence and etiology of any lumbar spine and nasal disorders. The claims file must be made available to the examiner for review, and the record should reflect that such a review was accomplished. The examiner should perform any medically indicated testing. After reviewing the record and examining the veteran, the examiner should specify whether the veteran has any current spine or nasal disorder, and provide an opinion as to whether any current spine or nasal disorder is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to the veteran's military service to include any in-service incidents/hospitalizations verified by the AOJ. A detailed rationale should be provided for all opinions. If an opinion cannot be provided on a medical scientific basis and without invoking processes related to guesses or based upon mere conjecture, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 6. After completion of the above and any other development deemed necessary, review the expanded record and determine if the benefits sought can be granted. Unless the benefits sought are granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2007). _________________________________________________ MILO H. HAWLEY 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).