Citation Nr: 1306286 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-38 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to April 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The claim was later transferred to the jurisdiction of the RO in Seattle, Washington. The Veteran had a video hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is of record. When the case was most recently before the Board in July 2012, the Board granted reopening of the Veteran's claim for service connection for a low back disability and remanded the reopened claim for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND The Veteran claims he injured his back during his military service, and his back pain has persisted ever since. Specifically, he contends that he was in a motor vehicle accident (MVA) in 1975 or 1976 en route from Camp Pendleton, California to Milwaukee, Wisconsin. He assets that he was hospitalized for the injury for several days in a civilian hospital in Ft. Morgan, Colorado. The Veteran's service treatment records confirm one isolated incident in November 1974 where he complained of back pain. At that time, it was suspected to be back strain. No diagnosis of a chronic disorder was rendered, and the Veteran's April 1976 separation examination disclosed that his low back was normal. His service treatment and personnel records are completely silent with regard to the claimed in-service MVA. Efforts were made to obtain records from Camp Pendleton and from the VA Medical Center (VAMC) in Milwaukee, Wisconsin, but to no avail. It is noteworthy, however, that no attempts were made to obtain the actual hospitalization records from Ft. Morgan, Colorado. Although the Veteran indicates he tried to get these records and could not, since it is necessary to remand this claim for other reasons, VA is to make efforts to obtain any and all hospitalization records from the civilian hospital in Ft. Morgan, Colorado dated in 1975 or 1976 related to the Veteran's MVA, to the extent they exist. The claim is complicated because while the Veteran's in-service MVA is not documented, there are several well-documented post-service low back injuries. The Veteran injured his low back in various types of injuries in 1985, 1990, and 1994. More recently, the Veteran has also been treated for fall-injuries. After service, it is well-documented that the Veteran currently has various low back diagnoses. The claim was last remanded, in part, to afford the Veteran a VA examination to ascertain whether any of the Veteran's current low back disorders are etiologically related to his in-service low back strain and/or his described in-service MVA. The Veteran was afforded a VA examination in September 2012. The examiner thoroughly discussed the Veteran's claimed in-service medical history, his post-service medical history, physical findings on examination, and the examiner's own observations from an independent review of the claims folder. The examiner opined that the Veteran's low back diagnoses are "less as likely as not" due to the Veteran's in-service injuries and more likely related to post-service injuries. As a rationale, the examiner noted the fact that there is no objective confirmation of the in-service MVA. It is unclear whether the examiner's opinion is solely based on the fact that the Veteran's in-service MVA is not objectively confirmed in the record because the examiner did not otherwise explain the opinion. The Veteran's representative points out that the Veteran is competent to describe in-service symptoms or event/injuries within his own realm of personal knowledge. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board agrees. The Veteran is competent to describe the details of the past MVA, his current pain, and his current symptoms notwithstanding the fact that there is no objective confirmation that the MVA happened. But see Caluza v. Brown, 7 Vet. App. 498 (1995) (explaining that competency of evidence differs from weight and credibility. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment). A clarification opinion is needed from the examiner. That is, it is unclear whether the examiner's opinion is based on doubt of the Veteran's credibility that the in-service MVA actually happened or, in the alternative, whether the post-service injuries are responsible for his current diagnoses even presuming the past in-service MVA. Corrective action is necessary. Within the narrative, moreover, the September 2012 examiner noted the Veteran has been receiving Social Security Administration (SSA) disability benefits since 2009 for his low back. These records are not currently in the claims folder nor is there any indication that attempts were made to obtain these records. Corrective action is necessary. See Hayes v. Brown, 9 Vet. App. 67 (1996)(holding where VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based). VA is to also take this opportunity to obtain VA outpatient treatment records from October 2012 to the present. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Ask the Veteran to identify and provide release forms for VA to obtain records pertaining to his hospitalization in Ft. Morgan, Colorado in 1975 or 1976 as well any other, outstanding private records relevant to the issue. Thereafter, the records should be obtained specifically asking that treatment reports, versus summaries, be provided. All efforts to obtain these records must be fully documented. 2. Contact the Social Security Administration for the purpose of obtaining a copy of the decision and all medical records relied upon in conjunction with any filed claim by the Veteran for SSA disability benefits. Any attempts to obtain records that are ultimately unsuccessful, must be documented in the claims folder. 3. Obtain a copy of any pertinent VA treatment records for the period beginning October 2012. 4. When all indicated record development has been completed, return the claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders to the September 2012 VA examiner. The examiner should be requested to review the Veteran's pertinent history and prepare an addendum providing additional rationale of the opinion that the Veteran's low back diagnoses were "less as likely as not" caused by military injury versus post-service injury. Specifically, the examiner is asked to clarify whether the opinion would change if, for purposes of this opinion, the examiner presumed the veracity of the Veteran's description of the in-service MVA. If the same examiner is not available, the claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders should be provided to and reviewed by a physician with sufficient expertise to determine the etiology of the Veteran's low back disorders. The physician should provide an opinion with respect to each low back disorder present during the period of the claim as to whether there is a 50 percent or better probability that the disorder is etiologically to the Veteran's active service. The physician is specifically directed to consider in-service treatment for back strain in November 1974, the Veteran's description of an in-service MVA in service (notwithstanding the fact that no objective records are in the claims folder), and his extensive history of post-service back-related injuries. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian. The physician must provide a complete rationale for each opinion expressed. The physician is to reconcile each opinion expressed with the other medical evidence, to include the September 2012 VA examination of record. If an opinion cannot be made without resort to speculation, the physician is to provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Another examination of the Veteran should only be performed if deemed necessary by the person providing the required opinions. 5. Undertake any other indicated development. 6. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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).