Citation Nr: 1314032 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 11-19 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a low back disability, including as secondary to service-connected degenerative joint disease of the left knee . 2. Entitlement to service connection for an upper back and neck disability, including as secondary to service-connected degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and K.M. ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to August 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. At the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304 (c). In September 2012, the Board remanded the claims to the Appeals Management Center (AMC) in Washington, DC for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. 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 AMC. VA will notify the appellant if further action is required. REMAND The Board's September 2012 remand directives have not been completed and the appeal must again be remanded. Stegall v. West, 11 Vet.App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). In September 2012, the Board directed that AMC conduct a VA examination to determine whether there is a medical basis to support or doubt the history provided by the Veteran with a fully reasoned explanation and to provide an opinion as to whether the Veteran's service-connected left knee disability has caused or aggravated (chronically worsened) his low back disability. The March 2013 VA examiner diagnosed the Veteran with lumbar spondylolithesis with radiculopathy and advanced degenerative disc disease of the cervical spine, and concluded that it is less likely than not (less than 50 percent probability) that both disabilities were incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner did not specifically provide an opinion as to whether the Veteran's service-connected left knee disability has caused or aggravated (chronically worsened) his low back disability. The examiner also did not report whether there is a medical basis to support or doubt the history provided by the Veteran with a fully reasoned explanation and an opinion. In September 2012 remand, the Board also directed that requested that the AMC attempt to obtain any of the Veteran's remaining service treatment records. The Veteran has alleged that VA does not have the complete set of his service treatment records. In January 2010, the RO received a set of service personnel records and service treatment records from the Veteran that was obtained from the National Personnel Records Center (NPRC). The Veteran has reported in various submissions and in testimony before the undersigned that apart from receiving aspirin from medics at the time of the in-service incident, he did not report to service medical providers after the in-service incident. While his service treatment records are consistent with his report of not then having received treatment, he nonetheless has an additional opportunity to submit any further evidence of any medical complaints, treatment, symptoms or any other information as to service occurrences as a result of this remand. To clarify, upon receipt of the AMC's notice to him of the implementation of this remand, he may submit this information, or notify VA through the AMC of its whereabouts. 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. Advise the Veteran that he may submit any additional information, that is not currently of record, in support of his claims of service connection for disabilities of the low back, upper back and neck. If the Veteran provides any other information as to the existence or whereabouts of service treatment records, undertake all necessary attempts to obtain them by contacting the National Personnel Records Center (NPRC), or any other appropriate agency. The objective is to obtain all remaining service treatment records for the Veteran. All records/responses received should be associated with the claims file. Requests must continue until it has been determined that the records sought do not exist or that further efforts to obtain those records would be futile. If the records are not obtained, the AMC should notify the Veteran in accordance with the provision of 38 C.F.R. § 3.159 IF IT IS DETERMINED THAT ADDITIONAL RECORDS HAVE NOT BEEN OBTAINED. 2. Return the claims file to the examiner who conducted the March 2013 VA examination. IF THE MARCH 2013 EXAMINER IS AVAILABLE, HE MAY CONDUCT A RECORDS REVIEW AND RESPOND TO THE QUESTIONS BELOW. IF THE MARCH 2013 EXAMINER OTHERWISE FINDS IT NECESSARY, HE SHOULD CONDUCT FURTHER EXAMINATION OF THE VETERAN TO RESPOND TO THE QUESTIONS BELOW. If that examiner is not available, schedule the Veteran for a VA orthopedic or similarly specialized examination, to be conducted by a qualified examiner. Issue an opinion that specifically addresses the questions below with a full explanation for any conclusions. The following considerations will govern the examination: a. The claims file MUST be made available to and thoroughly reviewed by the examiner in connection with the examination, and the examiner must acknowledge such receipt and review in any report generated as a result of the examination. b. The examiner must review the Veteran's statements, as well as service treatment records in conjunction with the examination. Any special diagnostic studies deemed necessary must be performed. c. The examiner must obtain from the Veteran a full in-service and post-service history pertaining to the onset, symptoms, and treatment of his low back, upper back, and neck disabilities. d. With respect to the review of the claims file, the Board calls the examiner's attention to the following: (i) The examiner is referenced to the Veteran's service treatment records - at the time of this writing are absent for any low back, upper back and neck symptoms. (ii) In June 2012, there was Board hearing testimony to the effect that the Veteran's wife had recalled treatment for a back disability beginning in approximately 1971. (iii) A June 2012 letter from Dr. Thomas P. Donohue, D.C., stating that the Veteran was a patient of his beginning in approximately 1979 for neck and back problem. He also stated that the Veteran had these problems for years. (iv) June 1989 private medical records reflecting a workplace injury to his back in June 1989. (v) With respect to current disability, the examiner is referenced to a June 2012 letter from Dr. Thomas A. Tozer, D.C.; a January 2012 letter from Mark R. Roberts, D.O. describing results of a magnetic resonance image (MRI) of the cervical spine; and a February 2009 record of a MRI of the lumbar spine, prepared by Dr. Roberts. (vi) The examiner is also referenced to the history provided by the Veteran, who alleges that during service he was in the driver's hatch of a personnel carrier with his shoulder and head exposed, wearing a helmet, and struck a tree striking him on the top of his head. He stated that it sheered the seat bolts off, and he was forced down into the vehicle. He recalled that he did not go to the dispensary at the time of the accident, and that his neck and back were stiff for about two weeks. He described continued back and neck pain since service and having gone to numerous chiropractors for treatment. e. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to the following questions: (i) Given the Veteran's account and the current lack of contemporaneous medical documentation of low back, upper back, or neck symptoms from the time of discharge from active service through at least 1985, is there a clinical or medical basis to support the Veteran's assertions. Please provide a fully reasoned explanation. (ii) Were the Veteran's low back, upper back, or neck disabilities caused by or are they a result of the Veteran's active service, and to also include whether any of the low back, upper back, or neck disabilities manifested as arthritis within one year after discharge from service? (iii) DID THE VETERAN'S SERVICE-CONNECTED LEFT KNEE DISABILITY CAUSE OR AGGRAVATE (CHRONICALLY WORSEN) HIS LOW BACK, DISORDER? (iv) DID THE VETERAN'S SERVICE-CONNECTED LEFT KNEE DISABILITY CAUSE OR AGGRAVATE (CHRONICALLY WORSEN) HIS UPPER BACK AND/OR NECK DISORDER? The examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ Vito A. Clementi 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).