Citation Nr: 1307119 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 03-34 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for cervical and lumbar spine disorders, also claimed as secondary to service-connected residuals of a left femur fracture. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Mother ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from January 17, 1984 to February 29, 1984. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran had a hearing before the Board in May 2008 and the transcript is of record. The Board originally denied this claim in a July 2008 decision. Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC or "the Court"). In a December 2009 decision, the Court vacated the Board's July 2008 prior denial and remanded the issue for further development. Thereafter, the case was brought before the Board in December 2011, at which time the claim was remanded in compliance with the Court's decision, and to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of her claim, to include affording her a VA examination. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issue on appeal. 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 on her part. REMAND The Veteran believes her current low back and neck disorders, which include arthritis, are the result of carrying heavy gear during basic training. Alternatively, the Veteran's representative submitted a December 2012 statement claiming, for the first time, her low back and neck disorders are attributable to her service-connected left leg disability. Specifically, her left leg disability "produced years of altered gait balance and stance," which could be responsible for current low back and neck diagnoses. Initially, the Board notes the VA never developed this alternative theory of the Veteran's claim. Corrective action is required. The Veteran must be sent a duty-to-assist letter explaining the evidence necessary to substantiate a "secondary" service-connection claim. That is, a disability which is due to or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). A VA examination addressing whether any found cervical or lumbar spine disorder was caused or aggravated by the Veteran's service-connected left leg disability is also necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran was afforded a VA examination in November 2012, the examiner did not address this aspect of her claim. The facts of this case are complex. Before entering military service, it is well documented that the Veteran was in a serious motor vehicle accident (MVA) in May 1979. The Veteran fractured her left femur and was hospitalized for four months. She further claims she injured her back and neck at the time, but medical records, although noting abrasions to the upper back, do not indicate any orthopedic diagnoses pertaining to the back. Rather, 1979 hospitalization records indicate the Veteran presented with abrasions to the face, upper back, chest, and left thigh, but aside from the left femur fracture, there was no objective evidence of any other significant injury. The Veteran's service treatment records are also silent as to any complaints, treatment or diagnoses of a back or neck condition. The Veteran's November 1983 entrance examination notes the fractured left femur in 1979 with four-month hospitalization. The entrance examination also notes a "trauma scar" on the upper back. However, no back or neck orthopedic diagnosis is indicated on entrance. Therefore, the Veteran is presumed to have entered service in sound condition with respect to her back and neck. See Wagner v. Prinicipi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran's representative also argues that some of the Veteran's service treatment and/or personnel records are likely missing. The Veteran was medically discharged due to her pre-existing left leg disability, but the record does not contain a medical examination board (MEB) determination or any of the physical disqualification proceedings. The Veteran's representative argues in light of the nature of her discharge, it is a certainty that some official medical determination was made. The Board notes that VA must make efforts to ensure all service treatment and personnel records are associated with the claims folder, to include any documents associated with the medical discharge determination. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding federal records are considered part of the record on appeal since they are within VA's constructive possession). After service, the Veteran has at least on one occasion indicated she was in another MVA in 1986, but no records associated with treatment for injuries of the 1986 MVA are of record. In fact, in March 1987, a private physician who examined her with regard to complaints of neck pain, found no objective evidence of a back condition on examination. He also noted that the Veteran was a poor historian. X-rays of the cervical spine at that time were within normal limits, and there was no documentation confirming a 1986 MVA. Other private medical records do indicate the Veteran was attacked by a home intruder in September 1987, but her injuries were related to a left hand laceration. The Veteran sought chiropractic treatment for complaints of back pain in the late 1980s and 1990s, but no physician actually diagnosed a chronic back condition until years after her military service. In fact, a private physician noted in November 1986 that despite the Veteran's "impressive" multiple complaints of back pain, there was no objective evidence of disease. At that time, the Veteran was referred to a psychologist. Further complicating the claim, medical evidence reflects that the Veteran in fact has significant psychiatric disabilities. She is receiving Social Security Administration (SSA) disability benefits with a primary diagnosis of schizophrenia. Doctors have doubted the veracity of the Veteran's statements in light of her psychiatric diagnosis. The Veteran was afforded a VA examination in November 2012, but the Board finds this examination inadequate. See generally Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (indicating when the VA undertakes providing the Veteran with an examination, the Board must assess whether the examination was adequate). For example, as indicated above, the examiner did not address the secondary aspect of the Veteran's appeal because this theory was only just recently raised by the Veteran's representative. In addition, although the examiner did address the likelihood that the Veteran's current low back or neck diagnoses are directly related to her military service, to include carrying heavy equipment, the examiner's opinion is unclear. On the one hand, the examiner noted even at 30 years after the Veteran's brief military service, the objective evidence shows mild tenderness and near full range of motion of the low back and neck. At that time, the Veteran was diagnosed with arthritis and degenerative disc disease (DDD) of the cervical and thoracolumbar spine confirmed by x-ray. In light of the mild objective findings, the examiner concluded it is unlikely her diagnoses are directly related to service. On the other hand, the examiner opined it is "more likely than not" that the Veteran's arthritis of the lumbar and cervical spine are related to the pre-service 1979 MVA as well as the natural progression of aging. However, the Board notes that a pre-service injury is even more remote in time than her military service. For that reason, the Board finds the opinion somewhat unclear. Additionally, as noted above, because no actual spine abnormality was found on entrance to the military, the Veteran is presumed to have been in sound condition (with respect to her back and neck) on entrance into the military. When no pre-existing condition is noted upon entry into service, a veteran is presumed to have been in sound condition upon entry and the burden falls on the government to rebut the presumption of soundness. Wagner, 370 F.3d 1089. Rebutting the presumption of soundness requires the VA show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. Id. The 2012 examiner, however, found the Veteran's conditions "more likely than not" attributable to the pre-service 1979 accident. This opinion is insufficient to rebut the presumption of soundness. Clarification and corrective action is required. In light of the possibility of missing service records, the new secondary theory raised, and the inadequacies of the 2012 VA examination of record, a new VA examination is indicated. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and her representative a letter advising them specifically of the laws and regulations pertaining to secondary service connection claims for her claimed condition. 2. Ask the Veteran to identify any and all treatment she received privately and at the VA for her low back or neck the reports of which are not already of record and provide release forms for private treatment identified. If release forms are provided, obtain any and all private treatment records identified. All efforts to obtain records must be fully documented and VA facilities must provide negative responses if no records are found. 3. Contact the NPRC or any other appropriate agency to obtain any missing service treatment or service personnel records, to include but not limited to records associated with any Medical Board determinations or physical disqualification proceedings. 4. After the above development is complete, and records are obtained to the extent available, ask the November 2012 VA examiner to offer an addendum to the opinion. If the same examiner is not available, schedule the Veteran for a new VA examination with an appropriate specialist to determine the current nature and likely etiology of the claimed cervical and lumbar spine disabilities, also claimed as secondary to service-connected residuals of a left femur fracture. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner's attention is specifically directed to the May 1979 to August 1979 hospitalization records, the Veteran's November 1983 enlistment examination and Report of Medical History, the private treatment records from 1987 indicating complaints of back pain, and the other SSA disability records pertaining to treatment, complaints, and diagnoses of spine conditions. If the November 2012 examiner is not available, the new examiner should conduct a thorough examination and provide a diagnosis for any pathology found. Based on examination findings and a review of the record, the examiner must answer the following questions: Does the Veteran have current diagnoses of lumbar or cervical spine conditions, and, if so: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a back or neck disorder that existed prior to her entry onto active duty, such as stemming from the May 1979 MVA? (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing condition was not aggravated by service (e.g., due to carrying heavy equipment) or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's low back or neck disorder(s) had its onset in service or is otherwise attributable to her military service (e.g., due to carrying heavy equipment during basic training)? (d) If the answer to either (a) or (b) is no and the answer to (c) is no is it at least as likely as not that the Veteran's low back and/or neck disorder(s) were caused or aggravated by the Veteran's service-connected left leg disability? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of low back or neck disability present (i.e., a baseline) before the onset of the aggravation. The examiner is to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Then, readjudicate the Veteran's issue remaining on appeal. If the claim remains denied, provide the Veteran and her representative a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response 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). The 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 2002). _________________________________________________ KATHLEEN K. GALLAGHER 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).