Citation Nr: 1313907 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-12 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1955 to December 1956. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Decatur, Georgia. In September 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Historically, in December 1956, the Veteran filed a claim for a back disability. In 1957, the RO denied a claim for a back disability and noted that the Veteran's in-service complaints had been found to have been acute and resolved. It also noted that the Veteran had "relatively asymptomatic" scoliosis of the dorsal lumbar spine. In 2007, the Veteran filed a claim for a chronic low back disability. The RO styled the current issue on appeal as whether new and material evidence had been received to reopen a previously denied claim for entitlement to service connection for scoliosis. The Board finds, based on the clinical evidence of record which reflects diagnoses of intervertebral disc syndrome, status post lumbar surgery with scarring, and lumbar strain, and based on Veteran's contentions that he had a back injury in-service and intermittent symptoms since service, that he is essentially claiming entitlement to service connection for a low back disability as he did in 1956. His claim to reopen a previously denied claim for entitlement to service connection for a low back disability is not limited to scoliosis merely because that was the only clinical finding in 1957. Thus, the Board has restyled the issue on appeal. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran testified that he received treatment for his back beginning in 1987 or 1988 at a VA facility. (See Board hearing transcript page 6.) A VA Form 21-4142 associated with the claims file reflects that the Veteran reported treatment at the Decatur Georgia VA Medical Center and the Smyrna., Georgia VA clinic from 1987 to present. A second VA Form 21-4142 associated with the claims file lists the date of service as 1988 to present. The earliest VA clinical record in evidence is from 2001. A December 2009 VA examination report reflects that the examiner's opinion was based, in part, on a lack of medical evidence of back complaints or treatment between 1957 and 2000. Based on the foregoing, the Board finds that VA should attempt to obtain VA treatment records, if any, from 1987 to present, not already associated with the claim's file. In addition, the Veteran testified at the Board hearing that in the 1960s, he went to a VA Soldiers' Home. (See Board hearing transcript page 4.) A copy of his Soldiers' Home in Holyoke identification card is associated with the claims file. The Soldiers' Home in Holyoke is a health care facility. Thus, it may have records pertinent to the Veteran's claim, and VA should attempt to obtain all such records, if any. As noted above, the Veteran filed a claim for entitlement to service connection for a back disability in December 1956, which was denied by the RO in February 1957. In correspondence dated in January 2008, February 2008, July 2008, April 2009, and May 2010, the Veteran requested that he be provided with copies of the records pertaining to the February 1957 denial. A photocopied form titled "Privacy/FOIA Request" and dated stamped November 2, 2009 is associated with the claims file. It appears to indicate that something was sent on November 2, 2009; however, it does not reflect what information was sent because it is not filled out other than the date stamp. In addition, even though it is dated November 2009, the Veteran, in May 2010 indicated that he had not yet received a copy of the records from his 1956 claim. The Veteran again indicated, at the September 2012 Board hearing, that he had not received a copy of the records. Based on the foregoing, the Board finds that the AMC or RO should provide the Veteran with a copy of the evidence of record in the claims file at the time of the February 1957 denial, to include the VA Form 8-526, clinical records, rating decision, and denial letter. 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. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his back and to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified providers, to include the Soldiers' Home in Holyoke in the 1960s. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records, to include pertinent VA treatment records, if any, from the Decatur Georgia VA Medical Center and the Smyrna, Georgia VA clinic from 1987 to present not already associated with the claims file. If no additional records are available, the RO should note such in the claims file, and advise the Veteran in this regard. 2. Provide the Veteran with a copy of the evidence of record in the claims file at the time of the February 1957 denial, to include the VA Form 8-526, clinical records, rating decision, and denial letter. 3. After undertaking any other development deemed appropriate, to include obtaining an addendum to the December 2009 VA opinion if warranted, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran, and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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 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. 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).