Citation Nr: 1303391 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-10 043 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for status post lumbar fusion secondary to central stenosis, spondylosis, and radiculopathy with somatic complaints, claimed as a back injury. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 RO decision, which denied the Veteran's claim. In a statement dated March 2010, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, he subsequently withdrew this hearing request in October 2011. Accordingly, the Veteran's Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). In October 2010, a local hearing was held before a Decision Review Officer (DRO) at the St. Louis, Missouri, RO. A transcript of that proceeding has been associated with the claims folder. This issue was remanded by the Board for further development in March 2012. The Veteran recently submitted evidence without a waiver of consideration by the agency of original jurisdiction (AOJ). As the Board is remanding the Veteran's claims, there is no prejudice is the delay in furnishing a supplemental statement of the case addressing this new evidence. See 38 C.F.R. § 20.1304(c) . On remand, the AOJ will have an opportunity to review this newly submitted evidence before readjudicating the claims. 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 After a thorough review of the Veteran's claims folder, the Board finds that additional development is necessary prior to the adjudication of this claim. Specifically, the Board requested in the March 2012 remand that the RO take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his back disability since service. The RO was directed, after obtaining proper authorization, to obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records the RO was unable to secure same, the RO was directed to notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Board notes that the Veteran submitted an Authorization and Consent to Release Information form signed April 23, 2012, in which he indicated that he had attached pages containing information regarding his medical treatment. In an attachment to this form, the Veteran listed several hospitals where he had received treatment from 1975 to the present. He also submitted several other statements in this packet of information referencing medical treatment he had received over the years. While the Veteran submitted numerous private medical records at this time, it does not appear that all medical records referred to by the Veteran are in the claims file or that any effort has been made by the RO to obtain these records. As such, the Board finds that this issue must be remanded once again in order to obtain any private treatment records for which the Veteran has submitted an Authorization and Consent to Release Information form, to specifically include those listed on the statements attached to the April 23, 2012, Authorization and Consent to Release Information form. Additionally, the Board notes that the Veteran submitted two separate Authorization and Consent to Release Information forms, signed on September 27, 2007, for Dr. M.G. and A and A Pain Institute. It appears from the record that the appropriate release forms were not attached to the letters requesting these documents. As such, the RO should again request the medical records from Dr. M.G. and from A and A Pain Institute referred to in the September 2007 Authorization and Consent to Release Information forms. The RO should also take this opportunity to obtain any and all relevant VA treatment records that have not yet been associated with the claims file. Finally, the Board notes that the Veteran underwent a VA examination in May 2012. Upon review of the claims file and examination of the Veteran, the examiner determined that it is not likely that the Veteran's episodes of low back pain while in the military caused nor did they contribute to the Veteran's degenerative disk disease, which brought on the necessary surgery. Rather, it was his initial incident in 1984 and his long history of doing physical labor. The Board notes that a May 1999 private radiology report documented spinal canal and lateral recess stenosis bilaterally at L3-4. It was noted that this was due to a congenitally small canal and diffuse bulge of the disk annulus. The Veteran was also noted as having a congenitally small canal at L4-5 with mild lateral recess narrowing bilaterally with minimal bulging of disk annulus. As the May 2012 VA opinion did not specifically discuss a possible effect of the Veteran's service on any pre-existing congenital back conditions, the Board finds that the physician who rendered the May 2012 VA opinion should be requested to submit an addendum opinion considering any newly submitted evidence and discussing whether or not the Veteran has a congenital back condition that was aggravated by his service. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file. 2. Request any pertinent medical records that have not already been associated with the claims file, to specifically include those listed on the statements attached to the April 23, 2012, Authorization and Consent to Release Information form, as well as records from Dr. M.G. and from A and A Pain Institute referred to in the September 2007 Authorization and Consent to Release Information forms. Associate any records received, including negative responses, with the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the aforementioned records have been obtained to the extent possible, the claims file should be sent to the May 2012 VA examiner in order to provide an addendum opinion. If the prior examiner is not available, the claims folder should be sent to another examiner for review. If the examiner finds that a new VA examination is necessary in order to answer the following questions, the Veteran should be scheduled for a new VA examination. If a new examination is necessary, the claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. If, and only if, any new, pertinent medical evidence is obtained, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed back disabilities were caused or aggravated by, or otherwise related to, his active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. Regardless of whether any new medical evidence is obtained, the examiner should indicate which, if any, of the Veteran's diagnosed spine disabilities constitute a congenital disease, a congenital defect, or an acquired disease or injury. (The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature.) If the examiner determines that any low back condition is a congenital defect, opine whether the Veteran now has additional disability due to an in-service disease or injury superimposed upon such defect. If the examiner determines that the Veteran's low back condition is a congenital disease, opine whether the disability clearly and unmistakably existed prior to his active service and clearly and unmistakably underwent no permanent increase in severity as a result of active service. A discussion of the complete rationale for all opinions expressed, including reference to the pertinent medical records, should be included in the examination report. 4. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC) was issued. If the benefit sought on appeal remain denied, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). No further 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 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). _________________________________________________ DAVID L. WIGHT 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).