Citation Nr: 1018331 Decision Date: 05/18/10 Archive Date: 06/04/10 DOCKET NO. 06-14 305A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to an increased rating for residuals of a right heel avulsion fracture, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to January 1974. He also served with the National Guard from November 1980 to November 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). 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 In an April 2010 written brief presentation, the representative argues that the appellant's residuals of a right heel avulsion fracture have worsened since his last VA examination in November 2003. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and a veteran's contention that the pertinent disability had increased in severity). Thus, another examination is warranted. A June 2004 VA treatment record shows that the Veteran had received VA treatment for low back pain since 1990. VA treatment records from 1990 to 1994 and from September 2002 to March 2006 are of record. Any additional VA treatment records pertaining to care between 1994 and 2002, and since 2006 need to be obtained. In a December 2004 notice of disagreement, the representative reported that the Veteran injured his back during a weekend drill with the California National Guard in Fullerton, California in 1983 or 1984. While the appellant submitted some service treatment records from his California Army National Guard service, a complete copy of his Army National Guard treatment records need to be obtained, as well as evidence showing the dates of all National Guard service, to include any term of active duty for training, and inactive active duty for training. In light of treatment on several occasions for back symptomatology during the Veteran's period of active duty, a VA examination is necessary for the adjudication of this claim. Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to confirm the Veteran's National Guard and/or Reserve service dates, to include each and every period of ACDUTRA and INACDUTRA service. All efforts to obtain these records should be fully documented. The appellant's California Army National Guard and/or Reserve units, as well as the National Personnel Records Center must provide a negative response if records are not available. If the RO cannot locate any identified federal records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The RO must ask the Veteran to submit all service personnel and treatment records in his possession, to include all records from his California Army National Guard service. The RO must also contact the National Personnel Records Center, as well as the California Army National Guard, in an attempt to secure all service treatment records from his service with the Army National Guard. The RO should associate any obtained records with the appellant's claim folder. If the RO cannot locate all service treatment records from any logical source or records depository, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. The RO should ask the Veteran to identify all VA treatment for his back disability from 1994 to September 2002, and to identify all treatment, VA and non-VA, for his back and heel disabilities since April 2006. Any such records should be associated with the Veteran's claims folder. If the RO cannot locate any VA records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 4. Thereafter, the Veteran should be afforded a VA orthopedic examination. The claims folder is to be made available to the examiner to review. In accordance with the latest AMIE worksheets for rating ankle disabilities, the examining physician is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to residuals of a right heel avulsion fracture. The examiner must also opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any current back disorder is related to service. A complete rationale for any opinion offered must be provided. In preparing any opinion, the examining physician must note the following terms: * "It is due to" means 100 percent assurance of relationship. * "It is at least as likely as not" means 50 percent or more. * "It is not at least as likely as not" means less than a 50 percent chance. * "It is not due to" means 100 percent assurance of non relationship. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining doctor must specifically explain why the cause of any current any current back disorder is unknowable. The VA examiner must append a copy of his or her curriculum vitae to the examination report. 5. The Veteran is to be notified that it is his responsibility to report for any ordered examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the appellant does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested is completed, the RO should review the examination report and medical opinion to ensure that they are in complete compliance with the directives of this REMAND. If the report or medical opinion is deficient in any manner, the RO must implement corrective procedures at once. 7. Thereafter, the RO must readjudicate the claims of entitlement to an increased rating for residuals of a right heel avulsion fracture, and entitlement to service connection for residuals of a back injury. If any benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN 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).