Citation Nr: 1102018 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 06-28 059A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals of a lower back injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Talpins, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from a June 2005 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Chicago, Illinois in which the RO denied the benefit sought on appeal. The appellant, who had active service from June 1963 to June 1965, appealed that decision to the BVA. Thereafter, the RO referred the case to the Board for appellate review. The appellant testified at a personal hearing conducted at the RO before the undersigned Veterans Law Judge in August 2008. At that time, he submitted additional evidence in support of his claim, with a waiver of initial RO review. August 2008 BVA hearing transcript, p. 2. After reviewing all evidence of record, the Board remanded the appellant's claim for further development in December 2008. Although the RO has recertified the case to the Board, the Board unfortunately finds after reviewing the record as a whole that part of the development requested in its December 2008 decision has not been adequately completed. As such, this appeal must be REMANDED once again to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND For the record, the medical evidence in this case reveals that the appellant has been diagnosed since service with, among other things, diffuse degenerative disk disease and moderate spinal stenosis at L4-L5. See August 2004 and November 2005 letters from C.S., M.D. As discussed in the Board's December 2008 decision, the appellant seeks service connection for the above-referenced medical conditions on the basis of back injuries he alleges occurred during service. See August 2008 BVA hearing transcript; appellant's statements. In remanding the appellant's back disorder claim in December 2008, the Board instructed the RO to, among other things, attempt to obtain outstanding private medical records from several medical providers, to include the "Little Company of Mary Hospital" and the "County Hospital" (later identified by the appellant as John Stroger Hospital). See December 2008 BVA decision; appellant's medical authorizations. While the claims file contains letters from the RO to various medical providers and several responses, the Board observes that the file does not include a response from John Stroger Hospital, despite the RO's request for a negative response from the hospital if no records could be located. See May 2009 letter from the RO to John Stroger Hospital; see also August 2008 BVA hearing transcript, pgs. 12-13 (the appellant testified that he received medical treatment at "County Hospital" for approximately 20 years after service mainly in association with his diagnosis of hypertension). Additionally, the Board observes that while the claims file contains a response with treatment records dated in November 2008 from Little Company of Mary Hospital, handwritten notes in the upper right hand corner of what appears to be a response letter from the hospital raise the question of whether additional medical records from the hospital remain outstanding. See May 2009 letter from the RO to Little Company of Mary Hospital with upper-right hand corner handwritten notes pertaining to ER visits in 1999, 2003, 2004 and 2005. In light of the foregoing, the Board finds that the appellant's claim must be remanded once more for the purpose of investigating whether pertinent medical records related to the appellant's claim are still outstanding. In addition to obtaining outstanding private medical records, the Board requested in its December 2008 decision that the RO attempt to obtain what appeared to be outstanding service treatment records referenced in a private medical opinion from C.S., M.D. dated in January 2006. See December 2008 BVA decision. In doing so, the Board noted that the January 2006 letter referenced service records that contained "a handwritten entry by the patient at one point that he was hit by a 3/4 ton truck and was taken to the main base hospital at Fort Bening [sic], Georgia" and "an indication in the records along with the history provided [to the doctor] by the patient that in 1964 he blacked out during maneuvers while wearing his heavy equipment pack and fell down a ravine." The letter also referred to reports by the appellant's wife and brother that when the patient was discharged from service, he "had an altered gait pattern and did not walk in a normal manner that they had noted previously." January 2006 letter from C. S., M.D. Upon remand, the Board requested that the RO contact the appellant and request that he and/or Dr. S. provide copies of the information reviewed and relied upon by Dr. S. in formulating his January 2006 medical opinion, to specifically include (1) the service treatment records reviewed by the doctor that included the "handwritten entry by the patient at one point that he was hit by a 3/4 ton truck" and (2) the lay statements from the appellant's spouse and brother that the appellant walked with an altered gait after his discharge from service. See December 2008 BVA decision. The record reveals that the RO obtained the notes related to Dr. S's January 2006 letter; and that these records reveal that the handwritten notations referenced by Dr. S. were made by the appellant after his separation from service (thus indicating that all of the appellant's original service treatment records have been associated with the claims file). See records and notes from C. S., M.D. dated from April 2004 to January 2006. However, the RO appears not to have specifically requested that the appellant provide the lay statements of the appellant's wife and brother. See letters from the RO to the appellant. As these lay statements are obviously relevant to the appellant's claim, the RO should take the opportunity upon remand to request this information. Lastly, the Board observes that the RO was instructed in December 2008 to afford the appellant a VA orthopedic examination for the purpose of determining the nature and etiology of the appellant's current back disorder and obtain an opinion as to whether the appellant's back condition is "related to the alleged injuries experienced by the appellant in service." See December 2008 BVA decision, p. 7. Although a VA medical opinion has been associated with the claims file in response to the Board's request, the Board observes that this opinion only addresses a current diagnosis of a lumbosacral spine strain and the appellant's assertion that he injured his back in service when struck by a truck. See April 2010 VA medical opinion. Notably, the VA medical opinion does not discuss the appellant's diagnoses of degenerative joint disease, diffuse degenerative disk disease and moderate spinal stenosis at L4-L5; nor does it reference the appellant's allegation of hurting his back during a fall from a ravine during service. Id. In light of these omissions, the Board finds that the RO upon remand should obtain an addendum VA medical opinion that specifically takes into consideration and discusses the appellant's assertions and all evidence contained in the claims file. See Stegall v. West, 11 Vet. App. 268 (1998) (holding "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders"). Accordingly, the case is REMANDED for the following actions: 1. After reviewing this remand decision in full, the RO should contact the Little Company of Mary Hospital and John Stroger Hospital to determine if these medical facilities have any outstanding medical records related to the appellant that should be associated with the claims file to include records of ER visits to Little Company of Mary Hospital in 1999, 2003, 2004 and 2005. If additional medical authorizations are required to obtain a copy of any outstanding medical records, the RO should contact the appellant and request that he provide such authorizations. After obtaining the necessary authorizations, the RO should associate those records with the claims file. The appellant should also be informed, in the alternative, that he may obtain these records himself and submit them to the RO. 2. The RO should contact the appellant and request that he provide copies of the lay statements from the appellant's spouse and brother referenced in the January 2006 letter provided by C. S., M.D. Upon receipt, these records should be associated with the claims file. 3. Subsequent to the completion of the above-referenced directives, the RO should return the appellant's claims file to the April 2010 VA physician (if available) or another qualified examiner for an addendum medical opinion that discusses whether it is at least as likely as not that the appellant's post- service back diagnoses to include degenerative joint disease, diffuse degenerative disk disease and moderate spinal stenosis at L4-L5, are related to the appellant's period of service. In providing this medical opinion, the examiner should specifically address the appellant's post-service back diagnoses in relationship to the injuries alleged by the appellant to have occurred during service to include purportedly being struck by a truck and a fall in a ravine. In addition, the examiner is asked to consider the appellant's service treatment records; his post- service medical records; the history of the appellant's claimed back disabilities as documented in the other evidence of record; and the appellant's statements. A clear rationale for the addendum medical opinion would be helpful, and a discussion of the facts and medical principles involved would also be of considerable assistance to the Board. 4. After ensuring that the above-referenced development has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). _________________________________________________ S. L. Kennedy 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) (2010).