Citation Nr: 1308993 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-28 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty for training from July 1972 to January 1973, and on active duty from July 1973 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was certified to the Board by the RO in Winston-Salem, North Carolina. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Information in the claims file indicates that the Veteran has applied for and been granted disability benefits from the Social Security Administration. Pursuant to the duty to assist, these records must be requested. See 38 C.F.R. § 3.159(c)(2) (2012); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that 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). Information in the claims file and received in testimony at a hearing before the Board indicates that the Veteran underwent discectomy surgeries in 2006 and 2007. However, the records of such surgeries have not been associated with the claims file. Thus, the RO must obtain and associate with the Veteran's file all outstanding private treatment records identified by the Veteran which are pertinent to the issue on appeal. Additionally, the claims file includes VA outpatient treatment records from the Durham VA Medical Center (VAMC) and the Morehead City Community-Based Outpatient Clinic (CBOC) dated through January 2009. 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 in the evidence of record. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must also obtain and associate with the Veteran's file all outstanding records of VA evaluation and/or treatment since January 2009. Finally, the Veteran underwent a VA examination in March 2008 to evaluate his low back disorder. The examiner diagnosed postoperative lumbar spine, with residual scar, and moderate degenerative joint disease of the thoracolumbar spine. The examiner opined that it was "less likely as not" that the Veteran's currently diagnosed back disorder is a continuation of the complaints noted while in the service. In so finding, the examiner noted that the Veteran currently had degenerative joint disease of the thoracolumbar spine; however, the examiner said that there was no mention of a specific injury or trauma while in the service, but rather only nonspecific complaints of lumbosacral spasms and chronic mechanical low back pain. The VA examination is not adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The VA examiner failed to consider or discuss the April 1974 entries contained in the service treatment records which document that the Veteran reported that he hurt his back while attempting to raise a boat house door. The VA examiner also neglected to consider the Veteran's recent statements concerning symptoms experienced in service and continuing after service. In this regard, the Veteran contends that as a machinery technician working on ships' engines in the Coast Guard, he was required to perform a lot of bending and lifting of heavy objects. He claims that in April 1974 he injured his back while attempting to raise a boat house door, that was approximately 30 feet wide and 15 or 20 feet high. He stated that he never fully recovered from that injury and experienced worsening back problems that continued since military service. The VA examiner failed to address whether the Veteran's claimed in-service symptoms are consistent with the currently diagnosed back disorder. Given the deficiencies in the March 2008 VA examination report the Board must remand this case for another medical examination and opinion. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain the surgical records regarding the discectomy in 2006 and 2007, as well as the treatment records from M.H., M.D. The RO must also attempt to obtain all pertinent VA outpatient treatment records from the Durham VAMC and the Morehead City CBOC since January 2009. The RO must also request from the Social Security Administration all medical records upon which any claim or award of disability benefits was based. All records obtained or any response received must be associated with the evidence of record. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be provided with a VA spine examination to determine whether any current back disorder is related to his active duty service, to include the reported lifting and bending therein, or the documented April 1974 injury sustained while attempting to lift a boat house door. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed back disorder is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing all appropriate development, the RO must readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).