Citation Nr: 1301319 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-48 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, claimed as a residual of a September 1975 injury. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a neck disorder. 4. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for hypertension has been received. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for degenerative joint disease of the lumbar spine. In an April 2012 rating action, the RO denied the Veteran's claims of entitlement to service connection for posttraumatic stress disorder (PTSD) and a neck disorder. The RO also denied the Veteran's application to reopen his claim for service connection for hypertension. The RO notice letter is dated April 9, 2012; that same month, the Veteran's notice of disagreement (NOD) in relation to these three claims for service connection was received. The claims file does not contain any SOC issued in response to the Veteran's NOD received in April 2012 as to those four claims; therefore these claims must be remanded for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). VA will notify the Veteran when further action is required. In June 2012, a videoconference hearing concerning the lumbar spine service connection claim was held between Houston, Texas and the Board in Washington, DC before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims 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 Board's review of the claims file reveals that further development is required before the issue on appeal is decided. In connection with the lumbar spine claim, a Statement of the Case (SOC) was issued in October 2009. Thereafter, VA medical treatment records, dated between April 2001 and March 2012, were added to the claims file (including Virtual VA). No supplemental SOC (SSOC) was issued after the receipt of these records. The RO transferred the case to the Board in June 2012. The RO was in receipt of these medical records prior to the transfer of the claims file to the Board. Regarding evidence received prior to such a transfer, 38 C.F.R. § 19.37 states that an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior SSOC, or the additional evidence is not relevant to the issue, or issues, on appeal. In this case, pertinent medical information was newly obtained by the RO and was not addressed in the SOC or in any SSOC. An SSOC must be furnished to an appellant and his/her representative when additional pertinent evidence is received after a previous SOC and/or SSOC has been issued. 38 C.F.R. § 19.31. In this case, no such SSOC was issued after the VA treatment records detailed above were added to the evidence of record. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be remanded back to the RO. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. During his June 2012 Board videoconference hearing, the appellant testified regarding 'Primecare' and other private orthopedic treatment for his claimed lumbar spine disorder. The record was held open for 60 days, but the appellant did not submit any records from any private providers. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA also has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, on remand, all outstanding VA and private treatment records should be sought, obtained and associated with the claims file. In addition, as the VA medical opinion of record was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Accordingly, a new medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board's task is to make findings based on evidence of record--not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Finally, the Veteran submitted a timely NOD, in April 2012, in disagreement with the denials of service connection for PTSD and a neck disorder. The Veteran also disagreed with the denial of reopening of his claim for service connection for hypertension. Because the RO did not subsequently issue an SOC addressing those three issues, the Board must remand those issues to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). As to the veteran's PTSD claim, a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Therefore, the psychiatric issue on appeal is as listed on the title page. On remand, these deficiencies must be rectified. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain from the appellant the names and addresses of all VA, government, and private physicians and/or medical facilities that have provided him with any treatment for his claimed lumbar spine disorder since 1979, and secure all available relevant reports not already of record from those sources. In particular, obtain all records from 'Primecare' and the private orthopedic providers mentioned in the appellant's June 2012 testimony. 3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and his representative must also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, arrange for a review of the appellant's claims file by an appropriate physician in order to determine the nature, onset date and etiology of the appellant's claimed low back disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed. If the reviewing physician does not have access to Virtual VA, any relevant treatment records contained in 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 reviewer. The reviewing doctor must consider the information in the claims file in providing an opinion as to the nature, extent, onset date and etiology of any lumbar spine pathology found, including whether the current arthritis existed within one year of the appellant's discharge from active service in April 1979. In assessing the relative likelihood as to origin and etiology of the claimed lumbar spine disorder, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to the Veteran's service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 the conclusion as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with that needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed lumbar spine pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. If the reviewing physician concludes that an examination of the Veteran is needed before an opinion can be rendered, schedule the Veteran for an examination(s). 6. Upon receipt of the VA reviewer's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, VA must refer the report to the VA reviewer for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 7. After all appropriate development has been accomplished, consider all of the evidence of record and re-adjudicate the appellant's claim. Ensure that all theories of service connection are considered. 8. If any benefit sought on appeal remains denied, provide a supplemental statement of the case (SSOC) to the appellant and his representative. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the service connection issue currently on appeal. An appropriate period of time for response must be allowed. 9. Examine the Veteran's claims of entitlement to service connection for PTSD and a neck disorder and his attempt to reopen his claim for service connection for hypertension. If no additional development is required, prepare an SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought, or by the Veteran's withdrawal of the NOD. If, and only if, the Veteran files a timely substantive appeal, should any one of these issues be returned to the Board. The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).