Citation Nr: 1308722 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 04-41 781A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to service connection for a back disability. 2. Whether a May 1975 rating decision in which the RO denied entitlement to service connection for L5-S1 left herniated nucleus pulposus with radiculopathy contained clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to September 1972. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2003 rating decision of the San Juan, Puerto Rico RO. Jurisdiction of the claims file subsequently transferred to the RO in New York City. In the August 2003 rating decision, the San Juan RO, inter alia, declined to reopen the Veteran's claim for service connection for back disability characterized as left herniated nucleus pulposus, L5-S1, with radiculopathy. In January 2004, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2004, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2004. In June 2004, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In February 2008, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is also of record. In May 2008, the Board remanded the request to reopen to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include additional development of the evidence. The AMC completed some of the remaining requested development, issued a February 2009 supplemental SOC (SSOC) continuing to decline to reopen the Veteran's claim for service connection for a back disability, and returned the matter to the Board in March 2009. In May 2009, the Board again remanded the Veteran's request to reopen to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the development requested by the Board in the May 2009 remand, the Huntington, West Virginia RO issued a July 2010 SSOC reflecting continued denial of the request to reopen the claim for service connection and returned the matter to the Board. In July 2011, the Board reopened the claim for service connection for a back disability, but remanded the claim for service connection, on the merits, to the RO, via the AMC, for further development. After accomplishing further action, the AMC denied the claim in a February 2012 SSOC and returned that matter to the Board for appellate consideration. In June 2012, the Board determined that additional development was still warranted in regard to the claim for service connection and again remanded that claim to the RO, via the AMC. After accomplishing additional action, the AMC issued a December 2012 SSOC and again returned the matter of entitlement to service connection for a back disability to the Board for appellate determination. For the reasons expressed below, the Board has expanded the appeal to include the issue of whether a May 1975 rating decision, in which the RO denied entitlement to service connection for L5-S1 left herniated nucleus pulposus with radiculopathy contained CUE. The claims are being remanded to the RO, via AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. First addressing the expansion of the appeal to include the issue of whether the May 1975 rating decision contained CUE, it is noted that, in the May 2008 remand, the Board directed the RO to adjudicate a pending claim of CUE. The Seattle RO then denied the claim of CUE in a February 2009 rating action and returned the Veteran's claims file to the Board. In May 2009, the Board observed that, despite instructions in the May 2008 remand to the RO to retain the Veteran's file until the expiration of the one-year time period for filing an appeal as to the claim of CUE, it received the claims file in April 2009. The Veteran subsequently filed with the Board an August 2009 letter in which he expressed disagreement with the denial of the CUE claim and quoted from the February 2009 rating action. Although the letter appears to be additional argument, it also constitutes an NOD to the February 2009 rating decision. 38 C.F.R. § 20.201 (2012). The Veteran filed this letter with the Board, rather than with the office that had "assumed jurisdiction of the applicable records"-the Huntington RO-as required by statute governing appropriate filing of NODs. See 38 C.F.R. § 20.300 (2012). However, the Board subsequently forwarded the Veteran's NOD to the Huntington RO for appropriate action and a date stamp on the document reveals that the Huntington RO received it on August 31, 2009. As the Veteran filed an NOD that was received by the correct office within the appeal period, the issuance of an SOC is required. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). As noted by the Board in the May 2009 remand, the CUE claim is inextricably intertwined with the claim for service connection for a back disability (as a finding of CUE in the prior denial will render the reopened claim foe service connection moot); as such, they must be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, any Board determination on the claim for service connection for a back disability would be premature prior to additional RO action on the claim of CUE in the May 1975 rating decision. Regardless, the Board's review of the claims file reflects that additional development of the claim for service connection for a back disability is warranted. The Board notes that the most recent (July 2012) VA examiner concluded that the Veteran's back disability was "not service related." The examiner explained that there was "one note during his service about low back pain" and "no other mention in the medical records during service." However, the Veteran's service treatment records contain five (5) separate entries about back pain. Further, in spite of Board directives, the examiner did not discuss the Veteran's treatment history prior to 1991 and it is not clear from the opinion if the examiner assumed that the Veteran did fall from a truck during active duty. The Board finds that a clarifying VA medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-is needed to fairly resolve the claim of entitlement to service connection for a back disability. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should return the claims file to the same VA examiner who performed the July 2012 VA examination for an addendum opinion addressing the etiology of the Veteran's lumbar spine degenerative disc disease. The RO should arrange for the Veteran to undergo further examination only if the July 2012 VA examiner is not available or another examination is deemed warranted. The Veteran is hereby advised that failure to report for any scheduled examination, without good cause, shall result in denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging to obtain further medical opinion in this appeal (to include via another examination, if warranted), to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. The RO should ensure that the Veteran's complete service records are associated with the claims file. The Veteran has testified that he received in-service treatment for his back at Valley Forge Army Hospital in 1972 while concurrently receiving mental health treatment, but no such records appear in his file. The Board notes that hospital clinical records as well as mental health records generated during active duty service are maintained separately from the rest of the service treatment record. See VA Adjudication and Procedure Manual, M21-1MR, Part III, Subpart iii, 2.B.10.d; Part IV, subpart ii, 1.D.14.a. Although the Veteran has specifically requested that VA search for these outstanding records, there is no indication that the RO/AMC made as many attempts as necessary to obtain the records or made a formal finding of their unavailability. Because any such missing active duty records would be highly relevant to the appeal, the RO should make appropriate efforts obtain them. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) in regard to requests for records from Federal facilities. In regard to current treatment records, the Board notes that the most recent treatment record within the claims file was generated at the VA Medical Center (VAMC) in the Bronx and is dated June 28, 2012. As the treatment notes within the claims file reflect that the Veteran receives ongoing treatment, any additional subsequent records should be obtained. Further, the Veteran has informed VA that he was in Puerto Rico during the second half of 2011. Although the claims file reflects that the AMC checked for records of treatment from the San Juan VAMC on July 15, 2011, no subsequent attempts were made. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Bronx VAMC all outstanding records of relevant VA evaluation and/or treatment of the Veteran after June 28, 2012, and all such records from the San Juan VAMC after July 15, 2011. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Furthermore, the evidence of record indicates that there are outstanding private medical records which may be pertinent to the claims on appeal. The Veteran has informed VA that he, while in Puerto Rico in 2011, received private medical treatment from a Dr. Figueroa. Although the Veteran submitted a letter from Dr. Figueroa, attesting to his treatment of the Veteran's back disability, no such treatment records are associated with the claims file. Further, a February 2008 VA treatment note states that the Veteran's back disability was being evaluated at a "Miami private hospital." As such, on remand, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim(s) on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding records from Dr. Figueroa and any private hospital in Miami at which he was evaluated for treatment of his back disability. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103 , 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. As indicated, the RO's adjudication of these claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO must furnish to the Veteran and his representative an SOC on the matter of whether the May 1975 rating decision that denied entitlement to service connection for L5-S1 left herniated nucleus pulposus with radiculopathy contained CUE, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal to perfect an appeal on that issue. The Veteran and his representative are hereby reminded that to obtain appellate review of the claim of CUE in the May 1975 rating decision, a timely appeal must be perfected within 60 days of the issuance of the SOC. 2. The RO should undertake appropriate action to obtain any outstanding active duty hospital clinical records and records of mental health treatment. The RO's efforts should include, but need not be limited to, inquiry to the National Personnel Records Center (NPRC)and the National Archives, and direct contact with Valley Forge Army Hospital in an attempt to retrieve any available records or to confirm their loss or destruction. In requesting this information, the RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Any follow-up actions indicated should be accomplished, and all records and/or responses received should be associated with the claims file. If the RO concludes that the records sought do not exist or that further efforts to obtain these records would be futile, there must be a formal finding and the RO should follow the procedures prescribed in 38 C.F.R. § 3.159(e) with respect to notifying veterans of the unavailability of evidence sought in conjunction with an appeal. 3. The RO should obtain from the Bronx VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated after June 28, 2012 and any such records from the San Juan VAMC dated after July 15, 2011. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 4. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record. The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding records of treatment from Dr. Figueroa and from any Miami hospital at which he was evaluated for treatment of his back disability. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). It should also inform the Veteran of the information and evidence necessary to support his claims and should specify what evidence VA will provide and what evidence the Veteran is to provide. 5. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159 . All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should forward the entire claims file, to include a copy of this REMAND, to the examiner who conducted the July 2012 VA examination for an addendum opinion addressing the etiology of the Veteran's back disability. The examiner should, for purposes of rendering an opinion, assume that the Veteran fell from a truck in 1971 during active duty service and subsequently sought in-service treatment for back symptoms - the examiner's attention is drawn to service treatment notes dated in November 1971 and January 1972 as well as any additional service records added to the record as a result of this remand. The examiner should provide an opinion specifically addressing the Veteran's contentions: whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran incurred a lumbar spine disability as a result of the 1971 in-service injury (or any other incident of service) that was later exacerbated in 1991 by his at-work injury and has continued to cause him disability. In rendering the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include, but not limited to, post-service VA and private treatment records showing treatment of back pain since at least 1974. If the examiner who conducted the July 2012 VA examination is not available, or, is unable to provide the requested opinion without first examining the Veteran, the RO should arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, to obtain a medical opinion responsive to the question and comments noted above. The entire claims file, to include a copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should set forth all examination findings (if any) along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 8. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims in light of all pertinent evidence and legal authority. If the Veteran fails, without good cause, to report to any VA examination scheduled in connection with the claim for a back disability, in adjudicating the claim, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. 10. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them an appropriate time period for response. The RO should not return the claims file to the Board until after the Veteran perfects an appeal as to the issue identified in paragraph 1 above, or the time period for doing so expires, whichever occurs first. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). ______________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).