Citation Nr: 1314012 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 05-41 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active service from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision in which the RO, inter alia, declined to reopen the Veteran's previously-denied claims for service connection for a back disability and a left shoulder disability. In November 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In November 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In September 2009, the Board reopened the claims, and remanded the claims for service connection for a back disability and left shoulder disability, on the merits, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. After completing the requested development, the AMC denied both service connection claims (as reflected in a November 2010 SSOC) and returned these matters to the Board for further consideration. In February 2011, the Board denied the claims for service connection for back disability and left shoulder disability. The Veteran appealed the Board's February 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the Court granted the joint motion for remand filed by representatives for both parties, vacating that portion of the decision in which the Board denied service connection for a back disability, and remanding that claim to the Board for further proceedings consistent with the joint motion. As noted in the joint motion, the Board's denial of service connection for a left shoulder disability was not disturbed. In August 2012, the Board remanded the claim for service connection for a back disability to the RO, via the AMC, for further evidentiary development consistent with the joint motion. After completing the requested development, the AMC continued to deny the claim (as reflected in an October 2012 SSOC,) and returned the matter on appeal to the Board for further consideration. In April 2013, the Veteran submitted a written statement directly to the Board, which appears to include a request for a new Board hearing. As indicated above, however, the Veteran was afforded a Board hearing in November 2006, during which he was given an opportunity to present testimony and evidence in support of his claim. See 38 C.F.R. § 20.700 (2012). For the reasons expressed below, the matter remaining on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision in this matter. As noted in the Introduction, in August 2012, the Board remanded the Veteran's claim for service connection for a back disability for further evidentiary development, to include arranging for the Veteran to undergo a VA examination. The Board specifically directed that the examining physician provide medical opinion addressing the following: (1) whether any diagnosed back disability clearly and unmistakably existed prior to service and, if so, whether the disability was clearly and unmistakably not aggravated during or as a result of service; and (2) for any disability that was found not to have clearly and unmistakably existed prior to service, whether it is at least as likely as not that any such disability had its onset in, or is otherwise related to the Veteran's military service. In rendering the requested opinions, the Board requested that the examiner discuss all service and post-service treatment records, as well as the Veteran's assertions, to include, on the question of pre-existing disability, a notation on the February 1966 enlistment examination report that the Veteran reported experiencing recurrent back pain prior to enlistment into service. Pursuant to the Board's remand request, the Veteran underwent VA spine examination in January 2013. However, review of the detailed and comprehensive examination report suggests that the AMC did not provide to examiner both opinion requests sought by the Board in its remand. Instead, it appears that the AMC only provided the second query regarding whether a back disability was incurred in or otherwise related to the Veteran's military service. As indicated, this question was to be provided for disability found not to have not clearly and unmistakably pre-existed service. Given the examiner's response, the Board could conceivably infer that the examiner found that no back disability clearly and unmistakably pre-existed service; however, this matter was not directly addressed. As such, the examiner's opinion was limited to the theory of direct service incurrence, and aggravation (of any pre-existing back disability) was not discussed. Moreover, the VA examiner did not provide a rationale in support of his opinion that addressed the medical and lay evidence of record, including the February 1966 enlistment examination, as requested. See January 2013 VA examination report. To ensure that, as previously sought, an opinion is obtained that addresses all medical and legal theories raised in connection with the claim, and to afford the Veteran full due process in this regard, the Board finds that another remand is needed to ensure compliance with the Board's previous remand instruction regarding obtaining a medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). On remand, the RO/AMC should obtain an appropriate addendum opinion from the physician who conducted the January 2013 VA examination. Prior to obtain further medical opinion in this case, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The evidentiary record, which consists of the Veteran's paper and paperless claims file, currently includes outpatient treatment records from the VA Medical Center (VAMC) in Providence, Rhode Island and its associated facilities, dated through October 2012. More recent records from this facility may exist. The Board emphasizes that 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 on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Providence VAMC all outstanding, pertinent records evaluation and/or treatment of the Veteran since October 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain from the Providence VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since October 2012. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After all outstanding records are associated with the claims file, arrange for the physician who conducted the January 2013 VA spine examination to review the record and provide an addendum opinion. The entire claims file, to include a complete copy of the REMAND, must be made available to the reviewing physician, and the addendum report should include discussion of the Veteran's documented medical history and assertions. a. The examiner should provide an opinion, consistent with sound medical principles, as to (1) whether any back disability clearly and unmistakably existed prior to service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. b. If the examiner determines there is clear and unmistakable evidence that a back disability existed prior to service, the examiner should discuss if and how this finding changes the conclusions reached in the January 2013 examination report. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford the Veteran and his representative the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).