Citation Nr: 1302197 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-00 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1965 to October 1967. The Veteran served in the Republic of Vietnam and is the recipient of the Vietnam Service Medal, the Vietnam Campaign Medal and the Purple Heart Medal. Procedural History This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, declined to reopen the Veteran's previously denied claim of entitlement to service connection for a low back disability. The Veteran submitted a Notice of Disagreement with this determination in April 2007, and timely perfected his appeal in December 2008. The Board notes that the Atlanta, Georgia, RO is the agency of original jurisdiction. In October 2011, the Veteran testified before the undersigned Veterans Law Judge, sitting in Atlanta, Georgia. A transcript of that proceeding has been prepared and incorporated into the evidence of record. Virtual VA The Board notes that the Veteran's electronic Virtual VA file has been reviewed. No additional, relevant records have been added to the electronic file. 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 on his part. (CONTINUED ON NEXT PAGE) REMAND The Board is cognizant of the fact that the Veteran's case has been in adjudicative status since 2009, and that it has been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding his case again unless it was essential for a full and fair adjudication of his claim. The Veteran contends that he currently suffers from a low back disability that is the result of his time in active duty service. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2012). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Reasons for Remand In April 2012, the Board remanded this claim, in part to contact the Veteran to request that he provide sufficient information, and if necessary, authorization, to enable the RO/AMC to obtain any additional pertinent treatment records not currently of record. The RO/AMC was instructed to assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. In April 2012, the AMC issued the Veteran a letter, requesting that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information, for each private health care provider who had treated him for his disability on appeal. See VA Letter to Veteran, April 19, 2012. Shortly thereafter, the Veteran submitted a VA Form 21-4142, listing S.B., a nurse, who was also the receptionist and sister of his primary care physician, A.J., D.O. The Veteran stated that he was treated by Dr. A.J. from the early 1970s until Dr. A.J. retired in 1999. During this time, the Veteran stated that he was consistently treated for low back pain, which began during active duty service. In June 2012, a response was received from S.B., stating that she did not have any of the Veteran's treatment records. She also stated that Dr. A.J.'s records and his estate were handled through his attorneys. See Response of S.B., June 12, 2012. The AMC failed to perform any additional development. The AMC did not contact S.B. to obtain the name(s) of the attorney handling the estate of Dr. A.J., nor was there any further attempt to obtain the outstanding medical records. As noted above, the Veteran has claimed that he has suffered from low back pain since his time in active duty service. Pursuant to 38 C.F.R. § 3.303(b), a showing of continuity of symptoms after discharge is required to support a claim. The AMC must attempt to obtain these outstanding treatment records to assist the Veteran in the development of his claim. Additionally, in the December 2012 Informal Hearing Presentation, the Veteran's representative argues that the AMC's failure to pursue the aforementioned missing medical records constitutes a violation of the Board's April 2012 remand directives, pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's representative also argues that the VA examination conducted in May 2012 is inadequate for evaluation purposes, as it failed to discuss all of the Veteran's medical history and assertions. Specifically, it is alleged that the Veteran's lay statements as to continuity of symptomatology and his post-service employment were not taken into consideration in rendering the nexus opinion of record. In Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007), the United States Court of Appeals for Veterans Claims held that when VA provides a veteran with a medical examination related to a claim for service connection, the examination must be adequate. Here, the Board does not find the May 2012 Disability Benefits Questionnaire to be adequate for rating purposes as it failed to take into account the Veteran's lay statements pertaining to chronicity and post-service employment. The Veteran must be afforded a new VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take all appropriate steps to contact S.B., to obtain any information regarding the Veteran's late primary care physician (A.J., D.O.) and the attorney(s) handling his former patient records and estate. If additional information is available, the RO/AMC should make all attempts to obtain the Veteran's medical records from A.J., D.O.'s estate, dated from the early 1970s to 1999. Any response received in conjunction with these requests should be memorialized in the Veteran's claims file. 2. Thereafter, the Veteran should be scheduled for a new VA spine examination, with appropriately qualified medical personnel, for the purpose of determining whether the Veteran now has a low back disability, to include lumbar degenerative joint disease at L4/5-S1, lumbar degenerative disc disease with spondylosis, and spondylolisthesis at L5-S1, related to or caused by service. The VA examiner should thoroughly review the Veteran's claims file in conjunction with this examination, and indicate that this has been accomplished in the examination report. All test and studies deemed necessary should be conducted. Based on a review of all pertinent records associated with the claims file, including the service treatment records, the examiner is asked to offer comments and an opinion as to the following: A.) Does the Veteran currently suffer from any disabilities associated with his low back, to include lumbar degenerative joint disease at L4/5-S1, lumbar degenerative disc disease with spondylosis, and spondylolisthesis at L5-S1? If so, please state the diagnosis or diagnoses. B.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any low back disability that the Veteran now has: (1) had its onset in active duty service (2) is related to active duty service (3) or was manifested within one year after the Veteran's discharge from active duty service? The VA examiner should also comment on the service treatment records that note the Veteran's treatment for low back pain (in May 1967), the Veteran's lay statements of continuity of symptomatology of low back pain since his discharge from active duty service, and his explanation of his post-service employment. Please clearly explain the underlying reasoning for your opinion; a discussion of the facts and medical principles involved must be provided. The term "at least as likely as not", does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The VA examination must be typed. 3. Thereafter, the RO/AMC must review the Veteran's claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. 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 of entitlement to service connection for a low back disability should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No 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 (2012). 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). _________________________________________________ DEBORAH W. SINGLETON 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).