Citation Nr: 1313559 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 07-14 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Eric A. Gang, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to May 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2009, the Board issued a decision on the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in November 2009, the parties to the appeal filed a Joint Motion for Remand. The Court granted the motion, vacated the Board's decision, and remanded the matter for further proceedings. In June 2010 and May 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In December 2008, the Veteran testified at personal hearing before the undersigned, sitting at the RO. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is again required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. First, the Board observes that the Veteran has submitted additional evidence in the form of personal statements, attorney arguments, and an opinion by a private physician, Dr. HED. This evidence was submitted directly to the Board after the last adjudication by the RO in a supplemental statement of the case (SSOC). The Veteran did not submit a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2012). Therefore, the Board may not properly consider this evidence without remanding the appeal for review of the evidence and readjudication of the claim at the AOJ level. Additionally, the Board noted in the prior remand that the Veteran alleged he was treated for a lumbar spine injury and follow-up at the hospital at MacDill Air Force Base (AFB) in Tampa, Florida. The appeal was remanded, in part, so that records related to that hospitalization and treatment could be requested from MacDill AFB for the period from January 1984 to December 1984. The post-remand record contains the following documentation. In May 2011, there was a request made for records from January 1984 to March 1984 and from March 1984 to May 1984. According to the journal entry submitted by the Veteran, the alleged injury occurred in December 1984. The response was that records for 1983 were sent, but no records for 1984 were located. However, while the Board acknowledges that the response stated that records were not available presumably for the entire year of 1984, the requests for records cover only January 1984 to May 1984. Therefore, the Board is not certain a search for records from the entire year was conducted. Additionally, in August 2011, a request for all records for the Veteran from MacDill AFB was sent, and MacDill AFB responded that there were no records on file for the Veteran, and he was not located in their computer system. As records from 1983 were received, this response was clearly not wholly accurate. Consequently, the Board again remands the appeal so that a request for treatment records from MacDill AFB for hospital records dated from December 1984 to May 1985. Finally, the Board observes that a VA opinion was received in September 2012 in which the examiner associated the Veteran's back pain with injuries in 1992 and 1994, but stated that his review of the claims file yielded no service records indicating that an injury occurred and caused the Veteran's degenerative spine disorder. However, while the examiner apparently considered the Veteran's self-report of his injury and treatment, his opinion suggests that he did not review the December 1984 journal entry associated with the alleged injury as that is a service-related document. Therefore, it appears that the examiner did not consider all relevant facts in forming the opinion. Moreover, the examiner's statement that "it is likely that falls with associated pain in 1992 and 1994 may be responsible for this veteran's back pain and are at least as likely a cause of this veteran's back condition" is speculative. Service connection may not be denied, nor granted, on a speculation under VA regulations. See 38 C.F.R. § 3.102 (2012); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Perman v. Brown, 5 Vet. App. 237, 241 (1993). Therefore, the claim should be remanded for an addendum opinion by the September 2012 VA examiner to include a discussion of the in-service journal entry from December 1984 and subsequent work entries in assessing the nature and severity of the Veteran's reported in-service injury. Accordingly, the case is REMANDED for the following action: 1. Request from the National Personnel Records Center (NPRC) and any other appropriate sources, any records of the Veteran's treatment at the hospital at MacDill Air Force Base, to include both inpatient and outpatient treatment records, for the period from December 1984 to May 1985. It should be noted that the Veteran's clinical records may be filed under the name of the facility and not the Veteran. All requests and responses, positive and negative, must be documented in the claims file. Efforts to obtain the records should be continued until it is determined that further requests would be futile. 2. After any additional records have been added to the claims file, request that the September 2012 VA examiner again review the claims file, including all service treatment records, journal entries, post-service treatment records, Social Security Administration records, VA and private medical opinions, and personal statements by the Veteran and offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current lumbar spine disorder is a result of his reported in-service injury as documented in the December 1984 journal entry, as opposed to other causes including post-service injuries and treatment. A complete rationale must be provided for all opinions and conclusions reached. If the September 2012 VA examiner is not available to provide an additional report, make arrangements for the file to be reviewed by an equally qualified examiner who should be requested to supply the addendum opinion. If further examination of the Veteran is necessary prior to another opinion being proffered, the Veteran should be scheduled for such examination. He must be notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). 3. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claim of entitlement to service connection for a lumbar spine disorder, taking into account all evidence provided since the December 2012 SSOC. If the benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with another SSOC and afforded a reasonable opportunity to respond. 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). This 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 Supp. 2010). _________________________________________________ L. M. BARNARD Acting 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).