Citation Nr: 1303687 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-36 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for neuropathy and numbness of the left lower extremity secondary to the low back disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, also including as due to the low back disorder. 4. Entitlement to service connection for a neck disorder. 5. Entitlement to service connection for a right hip disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty (AD) from February 1972 to July 1973. He also reportedly had additional service after that in the Puerto Rico Army National Guard from April 1979 to January 2001, so presumably including at times on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure there is a complete record upon which to decide these claims at issue in this appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). With regards to the claim for service connection for a low back disorder, the Veteran indicated during VA outpatient treatment sessions, including in November 2006, February 2007, and May 2007 that the pain in his low back had originated during his military service. He also informed the May 2007 VA general medical examiner that he had sustained a low back injury during his service, while in basic training, and that he consequently was medically evaluated and received physical therapy. He added that approximately 15 years prior to that May 2007 VA general medical examination, so in 1992 or thereabouts, he developed a sharp low back pain after lifting a heavy object. The Veteran's service treatment records (STRs) show that in March 1973 he injured his back and in May 1973 had pain in his back reportetdly for 11 months since Advanced Individual Training (AIT). He also injured his back while picking up equipment and assessed with a muscle strain in June 1984, complained of back pain for a week and a half while riding on a military vehicle and diagnosed with back muscular spasm in June 1989, and a May 1990 computed tomography (CT) scan of his lumbar spine revealed evidence of degenerative disc disease. But while his complaints and treatment for a back disorder are documented during his verified period of AD from February 1972 to July 1973, and although he has received a diagnosis of a back disorder during the pendency of this appeal, questions remand as to whether his June 1984, June 1989, and May 1990 documented complaints and treatment for his back were during a period of qualifying active military service, either ACDUTRA or INACDUTRA. The evidence currently of record does not specify when he was on AD, ACDUTRA and INACDUTRA. In his February 2007 claim application (on VA Form 21-526), he reported serving in the Puerto Rico Army National Guard from April 1, 1979 to January 1, 2001, and an April 2007 response to a Personal Information Exchange System (PIES) request for his STRs listed his service dates as from February 1972 to July 1973 and from April 1979 to January 2001. However, the file does not contain his service personnel records (SPRs) or verification of exactly when he was on ACDUTRA and INACDUTRA, including as specifically concerning the most relevant times in question when he complained of and received treatment for his low back. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military service includes disability resulting from injury or disease incurred in or aggravated during AD and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during INACDUTRA or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is sometimes referred to as "weekend warrior" training. These drills are deemed to be part-time training. Generally, an individual who has only Reserve or National Guard service (ACDUTRA or INACDUTRA with no AD) is not a Veteran as legally defined. In the service-connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to AD, would not apply to ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, service connection on a presumptive basis is not available where the only service performed is ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010) and Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the Federal military when they are formally called into the military service of the United States [and a]t all other times...serve solely as members of the State militia under the command of a state governor." See Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a "Veteran" for other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. See Id.; Paulson, 7 Vet. App. at 470. Records concerning his service merely denoting the amount of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when he was on ACDUTRA and INACDUTRA. Thus, the Board finds that, in order to properly adjudicate his claim of entitlement to service connection for a low back disorder, all periods of ACDUTRA and INACDUTRA must be verified. But even aside from that, there also remains question as to whether his current low back disorder is causally related to the complaints and treatment during his AD service, in March 1973 and/or May 1973. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has indicated that the factor of relationship of current disability to service establishes a low threshold and requires only that the evidence "indicates" there "may" be a nexus or link between the current disability or symptoms and a Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus but that is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate the current disability may be associated with service). The Board therefore finds this case presents a medical question that cannot be answered by the Board and that is not addressed by the existing evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Specifically, this question concerns the relationship, if any, between the Veteran's current low back disorder and his active military service, whether on AD, ACDUTRA or INACDUTRA, so including as possibly related to the documented complaints and treatment he had in service. The May 2007 VA general medical examiner apparently was not requested to provide a medical opinion regarding the etiology of the Veteran's low back disorder, so obviously did not. This determinative issue of causation, then, needs to be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The existing evidence of record does not provide the foundational basis necessary to adjudicate this claim of entitlement to service connection for a low back disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board resultantly is left to obtain this necessary medical nexus opinion. With regards to the claims for service connection for neuropathy and numbness of the left lower extremity and an acquired psychiatric disorder (claimed as depressive disorder and mental health), the Veteran asserts these disorders are due to his claimed low back disorder. Specifically, he made this assertion during his May 2007 VA general medical examination and in a September 2009 statement in support of claim (on VA Form 21-4138). Establishing service connection on this secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A preliminary review of the record shows the Veteran received diagnoses of tibial neuropathy "axonal component" and depressive disorder during his May 2007 VA general medical examination and May 2007 VA mental disorders examination. His claims for these additional disorders are "inextricably intertwined" with the claim concerning his low back disorder, inasmuch as he predicates these additional claims on a hopefully successful outcome of the claim for his low back disorder. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one cannot be rendered until a decision concerning another). Because the Board is remanding for further development his inextricably intertwined claim of entitlement to service connection for a low back disorder, so, too, must the Board remand these derivative claims to avoid piecemeal adjudication of claims with common parameters. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require the claims be adjudicated together.). See also Hoyer v. Derwinski, 1 Vet. App. 208 (1991) and Holland v. Brown, 6 Vet. App. 443, 446 (1994). Furthermore, in an April 2009 Report of Contact (on VA Form 119) with the Veteran, he confirmed that he is receiving social security income as of March 2009. The record also includes a Social Security Inquiry (SSI) report identifying his disability onset date as in June 2004, and he received monthly checks from the Social Security Administration (SSA) from December 2004 to December 2009. His SSA records are not on file, however. The Court has repeatedly held that, when VA is on notice of the possible existence of SSA records that may be relevant to a claim on appeal for VA benefits, VA must obtain them. See, e.g., Baker v. West, 11 Vet. App. 163, 169 (1998); Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992); and Murincsak v. Derwinski, 2 Vet. App. 363 (1992). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (reiterating that VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). The Veterans Claims Assistance Act of 2000 (VCAA) also emphasizes the need for VA to obtain relevant records from any Federal agency. See 38 U.S.C.A. § 5103A(b)(3), (c)(3); 38 C.F.R. § 3.159(c)(2). In light of the outstanding SSA records that may be potentially relevant to even the remaining claims for service connection for a neck disorder and right hip disorder, the Board is remanding these other claims as well. Accordingly, the claims are REMANDED for the following additional development and consideration: 1. Contact the SSA and obtain all relevant records from this other Federal agency, including especially as concerning the Veteran's receipt of benefits, if based on disability, a copy of the decision awarding these benefits, hearing transcripts, etc. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts for these records as are necessary to comply with this VA regulation. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Also contact all appropriate sources, including the National Personnel Records Center (NPRC) and the Puerto Rico Army National Guard, in order to verify the specific dates when the Veteran was on ACDUTRA and INACDUTRA from April 1979 to January 2001. If necessary, he should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. All outstanding service personnel records also should be obtained and associated with the claims file. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts for these records as are necessary to comply with this VA regulation. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 3. Upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule an appropriate VA compensation examination to assist in determining the nature and etiology of the Veteran's current low back disorder and to identify all associated residuals, including especially the claimed neuropathy and numbness of his left lower extremity and acquired psychiatric disorder. All efforts made to schedule this examination should be documented and incorporated into the claims file. The relevant documents in the claims file must be made available to the examiner for review of the pertinent history of these claimed disabilities, and the examination report should reflect this review has been accomplished. All appropriate testing should be performed and all pertinent diagnoses rendered. The examiner should also request a history from the Veteran and consider it in making his/her determination on appropriate diagnoses and etiologies. Based upon a review of the record and clinical findings, it is specifically requested that the VA examiner respond to the following questions: a) What is the likelihood (very likely, as likely as not, or unlikely) the Veteran's currently diagnosed low back disorder incepted during a qualifying period of active military service (whether on AD, ACDUTRA or INACDUTRA) or is in any way related or attributable to his active military service? b) If there is attribution of the low back disorder to the Veteran's active military service (again, whether on AD, ACDUTRA or INACDUTRA), what is the likelihood (very likely, as likely as not, or unlikely) the claimed neuropathy and numbness of his left lower extremity and acquired psychiatric disorder, including depressive disorder, were caused or are being permanently aggravated by the low back disorder? Two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. See Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). If the VA compensation examiner concludes that an opinion cannot be offered without resorting to mere speculation, then he/she should indicate this but, more importantly, explain why an opinion would be speculative, such as by specifying whether there are several possible etiologies with none more prevalent than another, additional information or other procurable data is needed, or whatever the reason. In other words, merely saying he/she cannot comment will not suffice. 4. Then readjudicate the claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. The Veteran and representative have the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of his claims. See 38 C.F.R. § 3.655 (2012). 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). ____________________________________________ Keith W. Allen 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).