Citation Nr: 1300178 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 11-21 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1954 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran perfected an appeal of the June 2008 rating decision by a substantive appeal received by the RO in January 2010. In October 2010, the Veteran's representative submitted a statement indicating that the Veteran wished to file a claim for service connection for a "back disorder." Curiously, and without regard to the timely filed appeal, the RO developed the claim as a petition to reopen a previously denied claim of entitlement to service connection for a lumbar strain, and denied it in a rating decision dated in March 2011. Again, the Veteran perfected a timely appeal. There is no indication, however, that the Veteran withdrew his appeal of the June 2008 rating decision. The issue has therefore been recharacterized to reflect that new and material evidence to reopen a previously denied claim is in fact not required; the current appeal arises from the original claim for benefits filed in July 2007. Although the issue has been certified as a claim for service connection for lumbar strain, the evidence reflects that the Veteran has multiple disorders affecting his lower back. The issue has thus been recharacterized to comport with the evidence of record. Hearings on this matter were held before a Decision Review Officer at the RO on April 8, 2009, and before the undersigned Veterans Law Judge on October 4, 2012. Copies of the hearing transcripts have been associated with the file. 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 The Veteran has been diagnosed with lumbar strain, as well as degenerative disc disease and degenerative joint disease of the lumbar spine. He asserts that these disorders had their clinical onset in an August or September 1956 back injury while stationed in Germany. During his October 2012 hearing, the Veteran testified that he was treated for his back injury at an Army dispensary in "Kisafen," Germany, over a period of several days, and that he has continued to experience back pain since that time. The RO requested the Veteran's service treatment records (STRs) and personnel records from the National Personnel Records Center (NPRC) in August 2007; however, only the Veteran's separation examination was provided. The Veteran was advised to complete NA Form 13055 so that a search of alternate sources could be undertaken. The Veteran submitted the requested form in October 2007, indicating that he had been treated at a dispensary in "Kielson," Germany, in August 1956, for back pain. In April 2008, the RO requested morning reports or other records of the Veteran's treatment for back pain from June 1956 to August 1956, this time identifying the Veteran's location as "Keislow," Germany. In May 2008, the RO received a response that additional identifying information was needed, as the Veteran's unit designation had not been provided. In June 2008, the RO issued a formal finding as to the unavailability of the Veteran's STRs and personnel records, stating that not enough information had been provided to search alternate records. However, on his NA Form 13055, the Veteran identified his unit as A Company, 290th Field Artillery, 7th Army Division. As the Veteran's STRs have been deemed missing and presumed lost, he is entitled to heightened assistance in procuring evidence in support of his claim. Remand is therefore required in order to fully develop the Veteran's contentions that he was treated for a back injury in Germany in August 1956. The Veteran also noted that he was treated for back pain at the VA Medical Center (VAMC) in West Haven, Connecticut, between 1972 and 1974. In April 2008, the RO requested that the VAMC provide all records of the Veteran's treatment for back pain at that facility in 1972. There was no response, and the RO did not follow up on its request. VA has a duty to assist claimants in obtaining all potentially relevant documents to substantiate their claims, including medical evidence either to verify or not verify the claims. 38 U.S.C.A. § 5103A(a)(1), (b) (West 2002); 38 C.F.R.§ 3.159(c) (2012). Therefore, renewed attempts must be made to obtain all of the Veteran's treatment records from VAMC West Haven dated from 1972 to 1974. See Dunn v. West, 11 Vet. App. 462, 466-467 (1998) (records created by VA are considered constructively part of the record and should be associated with the claims file); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, as it appears that the Veteran receives regular treatment at this VAMC, updated treatment records should be requested. The Veteran has informed VA that he is in receipt of Social Security disability payments. The records relied upon in support of that grant are potentially relevant to the claim and must be obtained. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possible nexus is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is well-established that the Veteran has several disorders affecting his lower back. He is competent to attest to a back injury during service and to a continuity of symptomatology since that time. Layno v. Brown, 6 Vet. App. 465, 467-69 (1994)(emphasizing that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge); see also 38 C.F.R. § 3.159(a)(2) (noting competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Veteran has also submitted a statement from his brother, indicating that the Veteran reported low back pain following his discharge from service. Despite the evidence pertinent to current diagnoses and in-service incurrence of the disorders, the Veteran has not been afforded a VA examination. An appropriate VA examination should be scheduled upon remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request from SSA all records associated with the Veteran's disability claim, including all disability determinations and all medical records considered in making those determinations. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which must be documented in the claims file. The Veteran must be notified of the attempts made and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all available treatment records from the VAMC in West Haven, Connecticut, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period from 1972 to 1974 and from January 2010 to the present. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which must be documented in the claims file. The Veteran must be notified of the attempts made and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. Submit requests for the Veteran's STRs, including sick and morning reports, and any other medical treatment records, to the NPRC, the U.S. Army and Joint Services Records Research Center (JSRRC), and the National Archives and Records Administration (NARA), or any other organization or agency deemed necessary. According to the Veteran's separation document, he served in Company C, 290th Armored Field Artillery Battalion, at the time of his discharge in October 1956. However, on his NA Form 13055, the Veteran indicated that he served with Company A, 290th Armored Field Artillery Battalion, at the time of his injury in August 1956. Since it is not entirely clear which unit the Veteran was serving with at the time of his injury, searches for sick and morning reports from both Company A and Company C, 290th Armored Field Artillery Battalion, in August and September 1956 must be undertaken. 4. Request that JSRRC, or any other appropriate agency, verify the location of the 290th Armored Field Artillery Battalion from August 1956 to October 1956 and, if possible, identify all nearby United States Army medical facilities at which the Veteran could have been treated for a back injury. If any identified facility has a name similar to "Kisafen," "Kielson," or "Kieslow," request from that facility all available records of the Veteran's treatment for a back injury in August 1956 or September 1956. If such records do not exist or are unavailable, a negative response must be obtained. 5. Schedule the Veteran for a VA spine examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide a diagnosis for each lower back disorder found. He/she must then indicate whether it is at least as likely as not (probability of 50 percent or greater) that each disorder had its onset as a result of the Veteran's period of active service. (The examiner is advised that the Veteran is competent to report a back injury and/or back pain during service and since that time.) The examiner must set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his period of military service. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case is to then be returned to the Board for further appellate 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (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. 2012). _________________________________________________ RONALD W. SCHOLZ 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) (2012).