Citation Nr: 1303344 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-25 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from June 1954 to July 1957 and from June 1958 to May 1959. The issue on appeal was most recently before the Board of Veterans' Appeal (Board) in September 2011. The Veteran appealed the Board's September 2011 denial to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the Court issued an order that vacated the September 2011 Board decision and remanded the matter on appeal for re-adjudication consistent with the instructions outlined in an April 2012 Joint Motion for Remand (Joint Motion) by the parties. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran contends that his current back disability either is due to his military service (wherein he was hit by a car in October 1955) or is related to his service-connected residuals of old fracture, pelvis, involving the inferior ramus of the pubis, left (hereinafter referred to as residuals of pelvis fracture). The Veteran asserts that he has had continuous problems with his back ever since his October 1955 in-service accident. In a newly submitted September 2012 statement, the Veteran's brother stated that after the Veteran's October 1955 accident, he remembered that "off and on for years [the Veteran] would talk about having pain in his back" and that the Veteran never complained about such pain before the accident. (The Veteran signed a waiver of initial RO consideration so that the Board could review this September 2012 statement in the first instance. See 38 C.F.R. § 20.1304 (2012). As the matter is being remanded anyway, the RO will have the opportunity to review this statement in the first instance.) The Veteran's service treatment records document the following findings. In September 1954, he complained of a backache. In October 1955, he was struck by an automobile while acting as a road guard for a convoy, and he sustained a fracture of the pelvis. On that same date in October 1955, he complained of back pain. A May 1990 VA medical record sets forth certain medical history of a job related back injury in 1961 while working for the Unit Parts Company. An April 1968 letter from James E. Winslow, M.D. also refers to the post-service job injury to the back and references a disability claim which awarded the Veteran compensation for the injury. All available records pertaining to the Veteran are to be obtained from the appropriate state Workers' Compensation agency. Despite undergoing VA examinations for his back in May 1990 and April 2011, there are no medical opinions of record which consider or address the Veteran's documented complaints of back pain in service. The Veteran should be scheduled for a new VA spine examination in order to determine the nature and likely etiology of his back disability (to include as secondary to his service-connected residuals of pelvis fracture). On remand, the Veteran should be informed of the specific information and evidence necessary to substantiate a claim for service connection on a secondary basis. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements, to specifically include furnishing notice to the Veteran informing him of the specific information and evidence necessary to substantiate a claim for service connection on a secondary basis. 2. The RO/AMC should contact the appropriate state Workers' Compensation agency and request copies of all records pertaining to the Veteran. Any negative search result should be noted in the record and communicated to the Veteran. 3. After completion of the above, the RO/AMC should schedule the Veteran for a VA spine examination to determine the nature and likely etiology of his back disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Based on examination of the Veteran and review of the record, the examiner should then respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's back disability is related to any incident of the Veteran's military service? The examiner is to specifically consider and address the Veteran's documented complaints of back pain in service (specifically in September 1954 and on the date of his accident in October 1955). (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's back disability is proximately due to his service-connected residuals of pelvis fracture? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's back disability has been aggravated by his service-connected residuals of pelvis fracture? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 4. After completion of the above, the RO/AMC should review the expanded record and readjudicate the appeal. If the issue on appeal remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran 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 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). _________________________________________________ ALAN S. PEEVY 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).