Citation Nr: 1005167 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 07-06 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral radiculopathy, also claimed as leg pain, to include as secondary to a service-connected back disability. 2. Entitlement to an initial rating in excess of 20 percent for service-connected degenerative joint disease, degenerative disc disease and muscle spasm of the lumbar spine and herniated nucleus pulposus and degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active military service from June 1980 to November 1980 and from February 2003 to July 2004. He also had service in the US Army Reserve for an unspecified period of time. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, inter alia, denied the Veteran's claim for service connection for bilateral radiculopathy. In his February 2007 substantive appeal (VA Form 9), the Veteran requested a hearing at the RO before a Decision Review Officer (DRO). Such a hearing was scheduled for June 14, 2007, and the Veteran was so notified; however, the Veteran was unable to attend due to being "in California on military drill," and requested that his hearing be rescheduled. However, in August 2007, the Veteran withdrew his request for a DRO hearing. 38 C.F.R. § 20.704(d) (2009). This appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the appellant if further action is required. REMAND Before addressing the merits of the Veteran's claim for service connection for radiculopathy, the Board finds that additional development of the evidence is required. First, although the AOJ sent the Veteran a Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) notice letter dated in August 2005, this letter addressed the Veteran's claim for service connection for radiculopathy on a direct basis, but not as secondary to his now service- connected back condition. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). As the evidence of record raises the possibility that the Veteran's radiculopathy is secondary to his now service-connected back condition, a remand is necessary to comply with the notification duties owed to the Veteran under the VCAA. The letter must satisfy the notification requirements of the VCAA by: (1) informing him about the information and evidence not of record that is necessary to substantiate his secondary service connection claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence that he is expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Second, regarding the records of the Veteran's Army Reserve Service: the VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a). Specifically, the VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the VA to obtain. 38 U.S.C.A. § 5103A(c)(3). These records include military records, including Army Reserve records. 38 C.F.R. § 3.159(c)(2). The VA will end its efforts to obtain records from a federal department or agency only if the VA concludes that such records do not exist or that further efforts to obtain those records would be futile. Id. Insofar as the record contains a DD Form 214 which shows that the Veteran had active duty service in the Army, Veteran status is established for the appellant for VA purposes. See 38 U.S.C.A. § 101(24). However, the AOJ has obtained service treatment records (STRs) which indicate that the Veteran's Army Reserve service extends considerably beyond the period revealed by the Veteran's DD Form 214. In fact As such, the AOJ must obtain sufficient records to show the extent of the Veteran's Army Reserve service, including any periods as active duty training (ACDUTRA) and inactive duty training (INACDUTRA). Third, in disability compensation (service-connection) claims, the VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the Veteran is currently claiming that he experiences radiculopathy, either as a direct result of a back injury which he experienced in service, or as secondary to his currently service-connected back condition. There is no evidence presented that the Veteran has the requisite training or experience necessary to render him competent to make such a determination. See Layno, at 469; see also 38 C.F.R. § 3.159(a)(1). Although the Veteran is not competent to diagnose himself with radiculopathy, he is competent to indicate that he experiences symptoms associated with radiculopathy. See 38 C.F.R. § 3.159(a)(2). Furthermore, the Veteran is currently service connected for the residuals of a back injury which he experienced in service in May 2004. The standard for requiring a VA medical examination is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability." See McLendon, supra, at 81. As such, the standard for requiring a VA medical examination is quite low. In the present instance, the Veteran was provided with a VA medical examination in September 2005, with addenda provided in June 2006 and January 2007; however, the examination and addenda failed to provide any statement regarding the Veteran's claim of experiencing radiculopathy. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that an examination must be adequate for rating purposes). Therefore, based on the medical and lay evidence of record, and the Court's decision in McLendon, a VA medical examination and opinion are needed to determine the nature and etiology of any radiculopathy that the Veteran may be experiencing. Finally, a review of the Veteran's claims file discloses that, in June 2009, he filed a notice of disagreement with the rating provided in the September 2008 AOJ decision, which had granted the Veteran's claim for service connection for a back condition and assigned a 20 percent rating. See 38 C.F.R. § 20.301 (2009). The Veteran has not been furnished a statement of the case (SOC) which addresses this issue. In such cases, under judicial precedent, the appellate process has commenced and the Veteran is entitled to a statement of the case (SOC). See Pond v. West, 12 Vet. App. 341 (1999); Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the issue of entitlement to an initial rating in excess of 20 percent for the Veteran's back condition must be remanded to the AOJ for additional action. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA-compliant notice letter notifying the Veteran and his representative as to any information or lay or medical evidence not previously provided that is necessary to substantiate his claim for secondary service connection for radiculopathy, to include as secondary to his service- connected back disability, what information or evidence the Veteran should provide, and what information or evidence the VA will attempt to obtain on his behalf. 2. Obtain from the appropriate source the Veteran's dates of service in the Army Reserve including any periods as active duty training (ACDUTRA) and inactive duty training (INACDUTRA). 3. Then, arrange for the Veteran to undergo a VA neurological examination, by an appropriate specialist, to determine the nature and etiology of any current bilateral radiculopathy which he may be experiencing. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of his pertinent medical history - including, in particular, any records related to the in-service injury which the Veteran experienced in May 2004. The examination report should indicate whether such review was accomplished. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to provide an opinion responding to the following questions: (A) Does the Veteran currently experience radiculopathy of either his left or right lower extremity? (B) Is it at least as likely as not (50 percent or more probable) that any current radiculopathy that the Veteran is experiencing is the direct result of his service, and in particular the injury which he experienced in May 2004? (C) If the answer is no, is it at least as likely as not that any current radiculopathy which the Veteran is currently experiencing is caused, or aggravated by, his service- connected back disorder? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible. 4. To help avoid a further remand, the AOJ must ensure that all requested action has been accomplished (to the extent possible) in compliance with this remand. The Veteran is noted to have a right to compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Readjudicate the claim for service connection for bilateral radiculopathy. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 6. The AOJ should further issue a statement of the case (SOC) to the Veteran addressing the appeal of the issue of an initial rating in excess on 20 percent for service-connected back disability. The Veteran and his representative must be advised of the need to file a substantive appeal following the issuance of the statement of the case if the Veteran wishes to complete an appeal from that decision. If the Veteran completes his appeal by filing a timely substantive appeal, the matter should it be returned to the Board for further 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.2009). _________________________________________________ A. BRYANT 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) (2009).