Citation Nr: 1301864 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-09 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from February 1960 to February 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2012, the Board remanded the case to the RO to provide the Veteran a hearing before the Board. The hearing was scheduled for December 2012, but the Veteran did not appear at the hearing. No good cause has been shown for not appearing, and therefore, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). 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 seeks service connection for degenerative disc disease of the lumbar spine. The Veteran states that in service in 1960, he was serving aboard an aircraft carrier and while trying to board a LST, he fell and injured his back. Evidence in the file indicates he served aboard the USS Lexington. He further states he was treated aboard ship and then transferred to Balboa Hospital in San Diego, California. The RO attempted to obtain unit records to determine if there was a report of the Veteran's injury, but, in a letter dated in August 2008, the RO requested the Veteran to provide an approximate date of the injury to guide a search by National Personnel Records Center (NPRC). To date, the Veteran has not responded. The Board has determined that the Veteran should be given another opportunity to give the approximate date of his injury and further, identify if he was stationed aboard a carrier other than the USS Lexington when his injury occurred. The Board reminds the Veteran that the duty to assist is not a one-way street, and that he has a duty to cooperate, to include providing the necessary information that will help VA and other sources locate relevant records. If an appellant wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). He is advised that he has an obligation to assist VA in the development of his claim, and that failure to do so may result in an adverse decision. The RO should then request the NPRC to search muster rolls (or any equivalent documents) and the USS Lexington deck logs for any records concerning the Veteran and whether he was hospitalized after a fall. The RO should also request from the appropriate custodian any inpatient records from the aircraft carrier, which from the service treatment records appears to be the USS Lexington, and inpatient records from Balboa Naval Hospital in San Diego. Although outpatient records from VAMC contain treatment to May 2008, as the Veteran has sought treatment from VAMC for his back disability, the RO should also obtain updated treatment records from VAMC Furthermore, as lay evidence concerning symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the RO should provide the Veteran a VA examination that considers whether the lumbar spine disability resulted from the incident described by the Veteran's lay evidence as to how the injury occurred. See 38 C.F.R. § 3.159(c)(4) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VAMC records from May 2008 to the present from the Houston VAMC, Galveston County CBOC, and any other associated outpatient clinics. All efforts to obtain these records must be documented in the file. 2. Ask the Veteran to identify the approximate date and the ship where he was stationed when he injured his back. The RO should advise the Veteran that such searches are feasible only if the NPRC has a 90 day period to make the search. The RO should also advise the Veteran that the failure to provide the information may result in a VA examination and subsequent decision based upon the evidence of record. 3. Request from the NPRC and any other appropriate source to include the National Archives and Records Administration, and the applicable service department, the appropriate sources records concerning the Veteran regarding an injury to his back for the period in 1960 identified by the Veteran. The request should request any documents concerning the Veteran including but not limited to muster rolls (or any equivalent documents), unit rosters, daily duty status reports, and deck logs of the USS Lexington or any other ship identified by the Veteran. All efforts must be documented and associated with the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159. 4. Request from the NPRC and any other appropriate source to include the National Archives and Records Administration, and the applicable service department all dispensary or in-patient records of the Veteran while he was stationed aboard the USS Lexington, or any other ship identified by the Veteran and from Balboa Naval Hospital, San Diego, California. All efforts must be documented and associated with the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159 5. After the foregoing record development is completed, provide the Veteran a VA examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is asked to determine the diagnosis of the Veteran's low back disability, and then, for any diagnosed disability, is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's low back disability is related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to specifically comment on the injury described by the Veteran where he fell while trying to board an LST and injured his back. 4. After the development requested is completed, readjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).