Citation Nr: 1303685 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-35 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a shoulder disability. 4. Entitlement to service connection for a headache disability. 5. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to January 1966. He also had a period of active duty for training (ACDUTRA) from March to September 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 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 in this appeal is warranted. A December 2003 letter from the Social Security Administration indicates that the Veteran became entitled to disability benefits in November 1994; however, these records have not been obtained. Pursuant to the duty to assist, these records should be requested. See 38 C.F.R. § 3.159(c)(2) (2012); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security Administration records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). The Board notes that the Veteran has also identified private treatment records that have not been obtained. In February 2007, he identified records from Dr. Hudson, which have not been obtained. The RO requested that he fill out a separate authorization for this physician, but he responded in May 2007 with multiple physicians on the same form. In his informal claim for benefits, he identified treatment from Highland Clinic, Industrial Medical Analysis, and the Family Clinic; however, he has not submitted authorizations so that VA can assist him in obtaining these records. Therefore, on remand, the RO/AMC should request that he submit authorizations for any outstanding treatment records. In the alternative, appellant is informed that he may obtain the records from these health care providers and submit them if he prefers. Regarding the Veteran's claims for service connection, the Board finds that a VA examination is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In this case, the Veteran's service treatment records indicate that he complained of and was treated for back pain, neck pain, right shoulder pain, and headaches. In June 1965, he complained of pain in his right shoulder and neck after heavy lifting. The July 1965 discharge report indicates that the Veteran's head, neck, spine, and upper extremities were normal and he denied bone, joint, or other deformity, and painful or "trick" shoulder. Post-service treatment records indicate the Veteran sustained multiple injuries during civilian life and has undergone several surgeries. In 1976, he injured his low back and right hip lifting a skid from a truck; he underwent surgery for herniated nucleus pulposus at the L5-S1 level in November 1977. In October 1978, he was involved in a motor vehicle accident (MVA) and injured his left chest wall; he also complained of recurrent back pain, muscle spasms, and headaches. In February 1982, he underwent surgery for recurrent herniated nucleus pulposus at the L5-S1 on the left side. In November 1993, he was involved in another MVA in which he rolled into a ditch to avoid a car and hurt his neck; he also complained of back and bilateral shoulder pain. In June 1994, he underwent surgery for cervical spondylosis with bilateral radiculopathy. In March 1995, he underwent decompressive laminectomy at the L4 and L5 levels. In August 2007, he underwent surgery for lumbar stenosis and spondylolisthesis at the L4-L5 level. The Veteran asserts that he initially injured his back, neck, and shoulders in service and that this made him more susceptible to later injury. He claims the post-service injuries aggravated the original injury he sustained in service. In an April 2008 letter, the Veteran's private treating physician (Dr. W.L.) opined that the Veteran "re-injured the preexisting injuries that he sustained during the military" and that "his military injuries are a direct linkage to his chronic disability." The Board notes, however, that it does not appear that Dr. W.L. reviewed the Veteran's service treatment records or had access to his claims file. Given the in-service complaints, the Veteran's assertions, and Dr. W.L.'s opinion suggesting a possible nexus between the Veteran's current disability and service, the Board finds that a VA examination and medical opinion is needed to fairly resolve the claims for service connection. Therefore, a remand is necessary. Regarding the Veteran's claim for an increased rating for PTSD, the evidence of record reflects that the Veteran was last afforded a VA examination approximately five years ago, in February 2008. The February 2008 VA examination is too remote in time to address the current severity of the Veteran's PTSD. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). As such, a more contemporaneous examination should be afforded to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain the Social Security Administration records pertinent to the Veteran's claim for Social Security disability benefits including a copy of any decision and copies of the medical records relied upon concerning that claim. If records are not obtained, the claims folder should contain documentation of the attempts made to obtain the records. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to August 2009, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA, to include records from Dr. Hudson, Highland Clinic, Industrial Medical Analysis, and the Family Clinic. All attempts to procure such records should be documented in the file. If the RO/AMC cannot identify records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. In the alternative, appellant is notified that he may obtain the copies of these treatment records and submit them to the VA. 3. After all available records and/or responses from each contacted entity are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back, neck, and shoulder, and headache disabilities. The Veteran's claims folder should be forwarded to the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. After examination of the Veteran and review of the entire record, the examiner is requested to identify any current disabilities of the back, neck, and shoulders, and the nature of any current headache disability. With respect to each diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or higher probability) that the disability is the result of disease or injury incurred in or aggravated by the Veteran's military service. The medical rationale for any opinion expressed must be provided. 4. After all available records and/or responses from each contacted entity are associated with the claims file, the Veteran should be afforded a VA examination to determine the current severity of his PTSD symptoms. The claims file must be provided to the examiner prior to the examination. All indicated studies and tests deemed necessary by the examiner should be accomplished and all results must be included in the examination report. A complete rationale for all opinions expressed must be provided. 5. The RO/AMC shall then take such additional development action as it deems proper with respect to the claims on appeal. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ MICHAEL D. LYON 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).