Citation Nr: 1312412 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 00-14 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1953. He served in the Reserves from 1949 to 1983, which included periods of active duty for training (ACTDUTRA) and inactive duty for training (INACTDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This issue has been remanded on multiple occasions and denied on two occasions. Following the denials, the Veteran filed appeals to the United States Court of Appeals for Veterans Claims (Court). Both times, the Veteran and the Secretary of VA filed joint motions to vacate the applicable Board decision and remand for additional development and/or more adequate reasons and bases. The more recent joint motion was filed in November 2012, which the Court granted that same month. The case has been returned to the Board for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board regrets that another remand is necessary for the Board to ensure the proper development of this claim. The Board finds there are multiple outstanding records that are potentially relevant to the issue on appeal, and there has been no attempt to obtain these records, which are described below. As stated by the Veteran's attorney in her December 2007 brief to the Court, "The BVA erred when it failed to explain how the VA had complied with its duty to assist the Veteran when the VA failed to request the Veteran's Social Security records." See pages 1& 12 of Appellant's Brief. This was not mentioned in the subsequent joint motion submitted to the Court in April 2008 as a basis for the remand. See joint motion. Regardless, the Veteran has indicated on multiple occasions that he has been in receipt of Social Security (SSA) disability benefits since 1989 for a low back disability. See, e.g., Board hearing transcript on page 7. An attempt to obtain these records has not been made, and this is a basis to remand the claim. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed.Cir.2010) (if there exists a reasonable possibility that records could help the veteran substantiate his claims for benefits, the duty to assist requires VA to obtain the records). In the August 1989 award letter from SSA, it noted that his case would be reviewed "at least once every 3 years." Thus, besides the medical records and other evidence relied upon at the time of the 1989 decision, there may be additional records pertaining to the Veteran's low back disability. Additionally, in going through the record in detail, the Board finds there are other outstanding potentially relevant records. For example, there is a June 1989 private medical record from Roosevelt Warm Springs Institute for Rehabilitation. Dr. Marcello A. Estrada wrote that it was the first time the Veteran was being seen at the Neurology Clinic. See record in Volume 1. In a September 1991 military medical facility record, the examiner noted that the Veteran was being followed by a physician downtown, who is an orthopedist, "Dr. Estrada." See September 11, 1991, record in Volume 4. This was further confirmed in a treatment record the Veteran submitted from Dr. Estrada, dated January 26, 1993. It is clear that Dr. Estrada had seen the Veteran in July 1992. Specifically, at the top of the January 1993 record is a notation of facts being dictated on July 24, 1992, and then transcribed on July 28, 1992. Additionally, Dr. Estrada wrote at the beginning of the January 1993 record, "This is a follow-up visit for this 62-year-old male with chronic low back pain syndrome secondary to musculoskeletal causes including unstable old fusion at the level of L4-L5 with acquired canal stenosis, particularly at that same level. . . . I have not seen this patient since 7-24-92." See record in Volume 7. In an October 1994 record, the examiner noted that the Veteran had received "long term" care from Dr. Estrada. Thus, based on all of these records, the Board concludes the Veteran was treated by Dr. Estrada from June 1989 to at least 1994. The Board will request the Veteran provide VA with permission to obtain Dr. Estrada's medical records from Roosevelt Warm Springs Institute for Rehabilitation. Additionally, in the June 1989 record, Dr. Estrada wrote that the Veteran had been referred to the clinic "by [the Veteran's] rehab supplier." The Veteran will be asked to provide VA with the name of the rehabilitation supplier and permission to obtain any treatment records. Also in the June 1989 record, Dr. Estrada wrote that the Veteran had been "seen by an orthopedic surgeon as well as two neurosurgeons." In noting these facts, he discussed a March 1989 MRI and an April 1989 tomogram, both of the lumbar spine. The interpretations of these two films are in the claims file. See reports in Volume 1. The March 1989 MRI shows that the admitting and ordering physician was Dr. William E. Adams, who, according to the internet, is a neurosurgeon. The Board will request the Veteran give VA permission to obtain medical records from Dr. Adams. The April 1989 tomogram shows that the admitting and ordering physician was Dr. John R. Stephenson who, according to the internet, is an orthopedic surgeon. The Board will request the Veteran give VA permission to obtain medical records from Dr. Stephenson. The Board notes that the June 1989 record appears to have been submitted by the Veteran. There is no indication that the record was obtained by VA through the facility. The Veteran is informed that if he has any other records from that period of time involving his back, particularly the treatment he received for at least five years from Dr. Estrada, he should submit those records. In an April 1994 military medical facility record, the examiner noted that the Veteran was being followed for low back pain by a "civilian orthopedic physician." See April 14, 1994, record in Volume 2. The Board will request the Veteran provide VA with the name of this physician so that VA may seek to obtain the records. An April 1996 military medical facility record shows that the Veteran reported that he was being followed by a neurologist in connection with his "multiple lumbar disc bulges." See April 22, 1996, record in Volume 2. The Board will request the Veteran provide VA with the name of this physician so that VA may seek to obtain the records. (It is possible that the neurologist is Dr. Estrada, which would mean that Dr. Estrada treated the Veteran from 1989 to 1996.) There have been times where the Veteran has indicated he received worker's compensation for the injuries he sustained to his low back in 1987. (The June 1989 record signed by Dr. Estrada notes another injury to the low back while at work in November 1988, where the Veteran blacked out.) The record shows the Veteran was working for Westvaco in Columbus, Ohio, at that time. The Board will request that the Veteran provide VA permission so that it may contact his former employer for any records from a worker's compensation claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask him to provide VA with the names, where applicable, and permission to obtain the following treatment records: * Westvaco in Columbus, Ohio, for records surrounding a possible worker's compensation claim in the late 1980s (1987 and 1989). * Roosevelt Warm Springs Institute for Rehabilitation facility from 1989 to 1996. * Dr. William E. Adams in approximately 1989. * Dr. John R. Stephenson in approximately 1989. * Civilian orthopedic physician in approximately 1994. * Neurologist in approximately 1996. The Veteran is informed that he should submit any records, to include medical records, in his possession pertaining to (i) treatment he received in connection with his SSA disability claim in 1989 and any records when SSA conducted subsequent reviews and (ii) any treatment he received in connection with his back in the late 1980s through the 1990s. 2. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits from approximately 1989 and the medical records relied upon concerning that claim and any records from subsequent reviews of the Veteran's disability. 3. After completion of the above, the RO should review the expanded record and determine if the claim may be granted. To the extent that this does not result in a grant, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________ ROBERT E. SULLIVAN 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).