Citation Nr: 1106480 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 04-11 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a spine disability, to include lumbar radiculopathy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from June 1997 to October 2000. The Veteran also served in the Army National Guard with a period of active duty training (ACDUTRA) from July 31, 1996 to November 22, 1996 and from October 2000 to August 2003, with several periods of inactive duty training and ACDUTRA. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) and two prior Board remands in May 2007 and November 2009. 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 Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Remand is required for proper development of the Veteran's service treatment records (STRs) and an adequate examination. First, remand is required so that the AMC can make a formal determination regarding the availability of the Veteran's STRs and provide corresponding notice to the Veteran. In both the May 2007 and the November 2009 remands, the Board directed that the AMC annotate the claims file if it determined that further efforts to obtain the Veteran's STRs would be futile. The Veteran is entitled to substantial compliance with a Court or Board remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, VA administrative procedures indicate that when a service department indicates that the requested records cannot be obtained, VA must prepare a formal finding of unavailability. See VA Adjudication Procedure Manual M21-1MR, Part III, subpart iii, Chapter 2, Section I, 59(b), (c). Furthermore, VA's duty to assist requires that it notify the Veteran if it determines that federal records are unavailable. 38 C.F.R. § 3.159(e) (2010). Although some of the Veteran's STRs are associated with the claims file, including 1996 National Guard records, scattered emergency room records from 1999, National Guard records from 2000 to 2003, and the 1997 Report of Medical History and Report of Medical Examination, the majority of the STRs from the Veteran's active duty period of service from 1997 to 2000 are not associated with the claims file. To date, the AMC has not yet made a written determination of the availability of the STRs. Additionally, the AMC has not yet provided the Veteran notice of any such determination. Accordingly, remand is required. Second, remand is required to obtain an examination that adequately addresses the medical and lay evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination be adequate). The AMC obtained an April 2010 examination and a November 2010 addendum. After examination and a review of the claims file, the examiner stated that an opinion could not be rendered without resort to speculation because there were no STRs that addressed the Veteran's lumbar spine condition. In the addendum, the examiner confirmed that statement, noting that there was no "useful information" in the STRs as there was no back treatment, as opposed to subjective reporting of symptoms. The opinion and addendum are inadequate because they do not consider or address the Veteran's lay statements regarding in- service and post-service back symptomatology, acknowledge that service records document two in-service back injuries, and do not address post-service discharge back injuries. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (noting that where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by an examiner does not automatically render an opinion persuasive, rather, the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion). Additionally, the law does not require treatment during service, only symptoms. See 38 C.F.R. § 3.303(a) (2010) (stating that service connection is established based on review of the entire evidence of record, to include "all pertinent medical and lay evidence"); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional). Moreover, the Board notes that the Veteran's STRs from the relevant time period are missing. Here, in April 1999 emergency room records, the Veteran reported that a back injury occurred in March 1999 while lifting an artillery round. Lay statements of record indicate that the Veteran sought pain medication at the emergency room at least weekly for at least 2 months after the March 1999 incident. In service records from April 1999, the Veteran complained of back pain after a motor vehicle accident. A back sprain was diagnosed and an x-ray noted a normal lumbar spine. In May 2002 service records, the Veteran reported increased back pain after a yard work injury. A May 2002 lumbar spine x-ray was negative, but a June 2002 magnetic resonance imaging (MRI) report showed L5-S1 disc protrusion. Private medical records from 2004 and 2005 indicate that the Veteran reported a back injury after wrestling a prisoner to the ground in his job as a police officer. A July 2004 MRI showed L5-S1 posterocentral protrusion. Private records from September 2005 indicate the Veteran reported a back injury lifting a box out of his squad car. An October 2005 MRI showed mild central disc protrusion of L5-S1. Last, the Veteran has provided competent and credible lay statements regarding an in- service back injury and symptomatology and post-service back symptomatology; a back injury and back pain are capable of lay observation and the Veteran has provided consistent accounts of his injury and continuous back pain since that time, including prior to filing the current claim on appeal. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (noting that a lay witness is competent to provide evidence as to the visible symptoms or manifestations of a disease or disability). Accordingly, remand is required for an adequate examination. Accordingly, the case is REMANDED for the following action: 1. Determine whether the remainder of the Veteran's STRs from 1997 to 2000 do not exist and/or that further attempts to obtain them would be futile. If the AMC so concludes, then it must make a formal finding of unavailability in accordance with the VA Adjudication Manual and provide notice to the Veteran in accordance with 38 C.F.R. § 3.159(e). If the AMC finds otherwise, it must undergo additional development actions. 2. Then, obtain an appropriate examination, if possible, from a different medical examiner than provided the April 2010 examination and November 2010 addendum, to determine the etiology of the Veteran's current lumbar spine disability. The claims folder, including a copy of this remand, must be made available to the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report and a supporting rationale must be provided. The examiner must take a detailed history of the Veteran's back symptomatology, to include the precise symptomatology suffered after the 1999 lifting injury, the 1999 motor vehicle accident, the 2002 yard work injury, the 2004 injury incurred wrestling a prisoner to the ground, and the 2005 injury incurred by lifting a box out of his squad car. The examiner must provide diagnoses for all lumbar spine disabilities found, including determining whether there is lumbar spine degenerative disc disease. The examiner must provide an opinion, in light of the examination findings, the Veteran's competent and credible lay statements regarding in- service and post-service injuries and symptomatology, and the service and post- service medical evidence of record, whether each diagnosed lumbar spine disability was caused or aggravated by the Veteran's military service, to include as due to the in-service lifting and motor vehicle accidents. Either within the opinion or in providing a supporting rationale, the examiner must address the following: 1) April 1999 STRs documenting a March 1999 back injury incurred while lifting an artillery round; 2) lay statements from the Veteran, his wife, and A.F. that indicate the Veteran sought treatment at the emergency room at least weekly for at least 2 months after the March 1999 incident; 3) April 1999 STRs that document an April 1999 motor vehicle accident and diagnosed a back sprain; 4) an April 1999 x-ray that noted a normal lumbar spine; 5) a May 2002 back injury incurred doing yard work; 6) a May 2002 negative lumbar spine x- ray; 7) a June 2002 MRI showing L5-S1 disc protrusion; 8) a 2004 back injury wrestling a prisoner to the ground; 9) a July 2004 MRI showing L5-S1 posterocentral protrusion; 10) a September 2005 back injury incurred lifting a box out of a squad car; 11) an October 2005 MRI that showed mild central disc protrusion of L5-S1; and 12) the Veteran's credible lay statements that he has had back pain continuously since his in-service back injury in 1999. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). 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). _________________________________________________ M. SABULSKY 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).