Citation Nr: 1126576 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 08-14 630 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for arthritis of the spine. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1950 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 RO decision, which denied a claim for service connection for arthritis of the spine. In January 2009, a personal hearing was held before a Decision Review Officer at the Detroit, Michigan, RO. A transcript of that proceeding has been associated with the claims folder. This issue was remanded for further development by the Board in March 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for arthritis of the spine. Having reviewed the claims file, the Board finds that additional development is necessary prior to the adjudication of this claim. The Veteran asserted in a November 2005 statement that he injured his back in the military but never reported it. He indicated that he slid down the stairs while carrying objects for the mess hall. At the January 2009 hearing, the Veteran indicated that, while he felt "pretty good" after that, he did not feel totally right. He indicated that he did not seek treatment because he was young and could still walk. In the November 2005 statement, the Veteran reported that he later reinjured his back after service and was treated for it. Specifically, the Veteran indicated at the January 2009 hearing that, later on, when he was probably 37 or 38 years old, he visited a physician who x-rayed him and told him that it appeared as if he had previously had some sort of fracture of his back when he was younger which grew back together crooked. The Veteran indicated in a November 2008 statement that he put up with the pain when he was young but that, today, the pain hampers his life. A review of the Veteran's service treatment records reveals no treatment, complaints, or diagnoses of a back disability or injury of any kind. The Board notes that the claims file contains post-service private treatment records from Foote Hospital, in which the Veteran complained of back pain. Specifically, in a February 1987 medical record from this facility, the Veteran complained of back pain on the left side. He indicated and he fell 4 days prior and had pain in the left mid-ribs. In a May 1987 treatment record from this facility, the Veteran complained of back pain and was noted as having an acute low back strain. In a separate May 1987 record from this facility, the Veteran was noted as having minimal narrowing of L4-L5 intervertebral space, with small anterior degenerative spurs in the upper lumbar spine and minimal levoscoliosis in the mid-lumbar spine. In an August 2004 private treatment record from Foote Hospital, the Veteran was noted as having arthritis. This record did not specify where exactly he had arthritis. The Board notes that this claim was remanded in March 2011 in order to provide the Veteran a VA examination with regard to this claim. The Veteran was scheduled for such an examination in April 2011. However, the Veteran failed to report for this examination. In the June 2011 Informal Hearing Presentation, it was asserted that the Veteran showed up a few hours late the day of this examination due to car troubles and, as a result, was denied an examination. The Veteran has further asserted that he has made several attempts to reschedule this appointment but has been unsuccessful to this point. As such, it was requested that the Veteran be rescheduled for this examination. In light of the Veteran's assertions that he was late to his appointment due to no fault of his own, and his indication that he is willing to report for a VA examination if rescheduled, the Board will remand this issue once again in order to schedule the Veteran for a VA examination to determine whether he has a current back condition of any kind, and, if so, whether this current back condition was caused or aggravated by his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The Board cautions the Veteran concerning his responsibility to cooperate with VA in these matters. The United States Court of Appeals for Veterans Claims (Court) has held that '[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.' Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's responsibility of cooperating in the development of his claim includes reporting for and cooperating during the course of a VA examination. Additionally, the RO should obtain any pertinent VA treatment records that have not yet been associated with the claims file. The Board notes that the Veteran indicated at the January 2009 hearing that he has been seeking medical treatment at VA facilities since approximately 2005 or 2006. Therefore, any relevant VA treatment records from 2005 or 2006 to the present from the Ann Arbor VA Medical Center (VAMC) or the Jackson VA Outpatient Clinic should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Any and all VA treatment records relating to the Veteran's claimed arthritis of the spine that have not already been associated with the claims file should be obtained. Specifically, any relevant VA treatment records from 2005 or 2006 to the present from the Ann Arbor VAMC or the Jackson VA Outpatient Clinic that have not yet been associated with the claims file should be obtained. 2. Schedule the Veteran for an appropriate VA examination for his claimed arthritis of the spine. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a complete history from the Veteran regarding his alleged back injury/disability and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran currently has a back condition of any kind or arthritis of the spine. If so, an opinion should be provided as to whether it is at least as likely as not that the Veteran's current back condition or arthritis of the spine had its onset in service, or was otherwise incurred in or aggravated by a disease or injury in service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 provide a complete rationale for any opinions provided. 3. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC). In the event that the claim is not resolved to the satisfaction of the Veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2010). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).