Citation Nr: 1312295 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-47 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a lightning strike to include right hip, leg, and foot disorders. 2. Entitlement to service connection for a lower back disorder. REPRESENTATION Appellant (Veteran) represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978, and from June to December 2007. The Veteran also served in the U.S. Army Reserves for approximately 30 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. No relevant evidence has been included in the claims file since the supplemental statement of the case (SSOC) dated in December 2010. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). 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. REMAND The Veteran asserts that, as a result of a lightning strike in 1990, he has current disorders in his right hip, leg, and foot. He also asserts that he developed a back disorder prior to June 2007 which was aggravated during his period of active service from June to December 2007. The Board finds remand necessary so that additional development and medical inquiry may be conducted into the Veteran's claims. First, the record indicates that VA treatment records have not been included in the claims file. In an October 2008 VA compensation examination report of record, the examiner indicates a review of records from the VA Medical Center in Ann Arbor, Michigan. These records are not included in the claims file. Second, the RO documented its several attempts to obtain and include in the claims file the Veteran's service treatment records (STRs). Dozens of STRs reflecting medical treatment the Veteran received during service between 1975 and 2005 are of record. However, STRs pertaining to the Veteran's service between June and December 2007 are not of record, and the record indicates that these STRs may be in the Veteran's possession. An additional effort should be made to obtain these records from the Veteran, if in fact he has them. Third, although the Veteran underwent VA examination in October 2008, the report and opinion rendered is not adequate. The report is unclear as to whether the Veteran has current right hip, leg, foot, and back disorders. The report does not contain a comprehensive opinion addressing the issue of service connection. Moreover, in the report, the examiner did not consider STRs that were added to the claims file in December 2010, which document that the Veteran was treated during reserve service in 1990 for complaints related to a lightning strike. Accordingly, the case is remanded for the following actions: 1. Attempt to obtain and associate with the claims folder VA medical records pertaining to any treatment the Veteran may have received for his claimed disorders at the VAMC in Ann Arbor, Michigan. Any other relevant VA treatment records should be included in the claims file as well. If no such treatment records exist, the claims file should be documented accordingly. 2. Notify the Veteran that although the claims file contains relevant STRs dated between 1975 and 2005, the STRs pertaining to his period of active duty from June to December 2007 are not in the claims file. Also notify the Veteran that certain statements of record indicate that he may be in possession of the missing STRs, and that, if that is true, he should provide copies of such records to VA. 3. Schedule the Veteran for the appropriate VA exam to answer the following questions. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. Regarding a back disability: a. Does the Veteran have a current back disability? The examiner should address any type of disability, to include those of a musculoskeletal or neurological nature. b. If it is determined that the Veteran does have a current back disability, did the Veteran have a back disability prior to the period of active duty between June and December 2007? If it is determined that the Veteran did have a back disorder prior to June 2007, was the back disability aggravated during active service between June and December 2007? The focus of the inquiry here is whether a pre-June 2007 back disorder permanently increased in severity between June and December 2007 beyond the normal progression of the disability. In assessing this question, the examiner should note the Veteran's credible lay statements that he experienced increased back pain during his active duty in Iraq between June and December 2007 as a result of wearing heavy body armor. The examiner should also note that while STRs of record dated between 1975 and 2005 are entirely negative for a back disorder, the Veteran is a credible historian with respect to back pain. c. If the examiner finds that the Veteran did not have a back disability prior to June 2007, the examiner should comment on whether it is at least as likely as not (50 percent or more probability) that a currently diagnosed back disorder is related to any in-service disease, event, or injury, to include his stated back pain during service. Regarding right hip, leg, foot disabilities: d. Does the Veteran have a current right hip disability, a current right leg disability, or a current right foot disability? The examiner should address any type of disability, whether orthopedic, muscular, or neurological. e. If it is determined that the Veteran does have a current disability, then the examiner should address, for each identified disability, whether it is at least as likely as not that the currently diagnosed disability is related to the confirmed in-service lightning strike. Review of the whole file is requested, but specific attention is invited to the STRs dated in 1990 which evidence that the Veteran underwent medical treatment for a lightning strike. Also, the examiner is specifically advised to consider the Veteran's lay statements regarding any symptoms he may have experienced. Please explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 5. After all the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a SSOC as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK 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).