Citation Nr: 0814470 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-01 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from September 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. The veteran testified before a Decision Review Officer (DRO) at the Indianapolis RO in October 2004. A transcript of that hearing is associated with the claims folder. The issue before the Board today was remanded in April 2007 for further evidentiary and procedural development. This was accomplished; however, the Board concludes that further development is necessary before it may proceed with a decision on the merits. 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, in its April 2007 remand, directed the agency of original jurisdiction (AOJ) to contact the veteran and request that he provide information, including release forms, for any medical treatment he had received for his back over the years. In June 2008, the AOJ received a completed consent to release information form for Dr. E. of Shelbyville, Indiana, for treatment between June 1985 and April 2004. A review of the claims file reflects that records were previously requested from Dr. E. and received in December 2002. Thus, it appears that outstanding treatment records exist. In light of VA's duty to assist the veteran in obtaining any relevant private medical records under 38 C.F.R. § 3.159(c)(1), the Board concludes that a remand is necessary to obtain any outstanding treatment records from Dr. E. Additionally, since the Board is already remanding this appeal, the veteran should be given another opportunity to submit a consent to release information form for treatment received at St. Francis Hospital in the early 1980s. As noted in the previous remand, the veteran asserts that his back was injured during service when he was beaten with a baseball bat in 1967. Service medical records show that he was beaten with a baseball bat; however, there is no mention of any low back injuries. The veteran testified at a hearing before a Decision Review Officer that he was hospitalized for three days in conjunction with these injuries. He also submitted two buddy statements from J.M. who was hospitalized at the same time as the veteran and continued to visit him until the veteran's release. Attempts to obtain these missing hospital records have been unsuccessful because the veteran has been unable to provide the name of the facility where he was hospitalized. However, at his December 2007 VA examination the veteran stated that he was hospitalized at a local military/civilian facility named Riman Hospital for treatment of his baseball bat injuries. Since he stated that both military and civilian personnel staffed the hospital, the Board finds that a request for these records should first be made through the National Personnel Records Center (NPRC). If no records exist for such hospital facility, then the veteran should be contacted and asked to provide a consent to release information form for Riman Hospital. As before, should any records retrieved on remand indicate an in-service back injury, the Board concludes that an etiological opinion is necessary to aid in the Board's determination of the veteran's appeal. Thus, a VA examination will be in order. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran and ask him to provide the address for St. Francis Hospital, as well as the dates he received treatment for back problems from such facility. After securing the necessary release, obtain these records. 2. Using the release form received in June 2008, request any treatment records pertaining to the veteran's claimed low back disability from Dr. E. for the period from June 1985 through April 2004. At least one follow-up request should be made unless evidence is received which indicates that further attempts to obtain such records would be futile. 3. Request the NPRC to conduct a search of clinical records at Riman Hospital in Munich, Germany for the period of October 1, 1967, through November 30, 1967, for treatment pertaining to the veteran. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 4. If the NPRC provides a negative response, contact the veteran and ask him to provide a release form for his treatment at Riman Hospital in October/November 1967. If a consent form is received, make appropriate attempts to obtain these records. 5. Following completion of the above development, and if, and only if, medical records are obtained which demonstrate that the veteran had complaints of back problems or an in-service back injury, then request a VA back examination to ascertain the existence and etiology of the veteran's current back disability. The claims file, to include a copy of this Remand and any additional evidence secured, must be made available to the examiner and the examination report should reflect that the claims file was reviewed in conjunction with the examination. All medically indicated testing should be performed. The examiner should indicate whether the veteran has any current back disability and provide a diagnosis. The examiner should also provide an opinion as to whether it is more likely (greater than a 50 percent probability), less likely (less than a 50 percent probability), or as likely as not (50 percent probability) that any current back disability is etiologically related to the veteran's active military service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 6. After completion of the above and any other development deemed necessary, review the expanded record and determine if the benefit sought can be granted. Unless the benefit sought is granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. 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).