Citation Nr: 1314532 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-23 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to a service-connected left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had an initial period of active duty for training in the United States Air Force Reserves (USAFR) from August 1978 to January 1979. She served in the USAFR from July 1978 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's claim was previously before the Board in April 2010 and was remanded at that time for additional development, to include obtaining outstanding service records and affording the Veteran a VA examination. This claim came before the Board again in August 2011 and October 2012 when it was remanded in order to schedule the Veteran for a hearing. In January 2013, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's electronic claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on her part. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of three previous remands. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Veteran is seeking service connection for a back disability. She contends that she injured her back while lifting a box while on active duty in September 1988. She has also stated that she was involved in a motor vehicle accident while on active duty in July 1992. The Veteran has further alleged that her back disability is due to, or aggravated by, her service-connected left knee disability. In April 2010, the Board remanded this case for additional development action, to include obtaining her "dates of ACDUTRA/INACDUTRA . . . for the month of July 1992." The Board also requested that a copy of any line of duty determination that was completed after the July 12, 1992 motor vehicle accident be obtained and associated with the claims file. Following the Board's remand, the VA Appeals Management Center attempted to obtain the requested information from the Florida Air National Guard without success. Specifically, in a June 2010 letter, the Florida Air National Guard stated that it had searched its records and was unable to find any information on the Veteran. While the Florida Air National Guard suggested that the AMC contact the National Personnel Records Center (NPRC), the record indicates that the AMC did not conduct an additional search for the Veteran's records. 38 C.F.R. § 3.159(c)(2) states that "VA will make as many request as are necessary to obtain relevant records from a Federal department or agency." Here, the AMC failed to conduct a search for the Veteran's records from the "appropriate agency" as requested in the Board's April 2010 remand. In Stegall v. West, 11 Vet.App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Because the record indicates that the AMC has not attempted to obtain the Veteran's complete dates of ACDUTRA/INACDUTRA, this case must be remanded so that the requested evidentiary development may be accomplished. In addition, the record reflects that the Veteran was afforded a VA examination in March 2008 in order to determine the etiology of her diagnosed spine disability. While the examiner indicated that the Veteran's spine disability was not related to the injuries she sustained while on active duty, he did not render an opinion as to whether the Veteran's spine disability was due to, or aggravated by, her service-connected left knee disability. Consequently, this case contains certain questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern whether the Veteran's diagnosed degenerative disc and degenerative joint disease of the lumbar spine with L4-5 stenosis was caused or aggravated (permanently worsened beyond normal progression) by the service-connected left knee disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Finally, the record indicates that the Veteran has been awarded disability benefits from the Social Security Administration (SSA). The medical and legal documents pertaining to the Veteran's grant of benefits from the SSA have not been associated with the claims file; nor does it appear that an attempt has made to procure them. VA has a duty to obtain SSA records when they may be relevant to a claim. 38 U.S.C.A. § 5103A(c)(3) (West 2002); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The possibility that SSA records could contain evidence relevant to the Veteran's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Therefore, the Board finds that an attempt should be made to obtain any available SSA records. 38 C.F.R. § 3.159(c)(2) (2012). Because the record indicates that the Veteran has been awarded benefits from the SSA, the Board finds that her appeal must be remanded in order to accord the agency of original jurisdiction (AOJ) an opportunity to procure these documents. 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, Records Management Center, and/or any other appropriate repository of records, and request the Veteran's dates of ACDUTRA/INACDUTRA for the month of July 1992. A copy of any line of duty determination that was completed after the July 12, 1992, motor vehicle accident must also be requested. If the Veteran was on the last day of a period of ACDUTRA / INACDUTRA on July 12, 1992, the approximate time that the training assembly would have terminated should also be requested. 2. Contact the Veteran and request she identify the names, addresses, and approximate dates of treatment for all non VA health care providers who have treated her for her low back disability. Attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims file. All attempts to locate and obtain these records should be documented in the Veteran's claims folder in accordance with procedures set forth in 38 C.F.R. § 3.159(e). 3. The RO/AMC should take all indicated action to contact SSA for the purpose of obtaining copies of all decisions and records that pertain to the Veteran's claim for disability benefits from that agency. Any records so obtained should be associated with the Veteran's VA claims folder. Any notice from SSA that these records are not available should be noted in the Veteran's claims folder. 4. Then, arrange for an appropriate VA health care provider with appropriate experience to review the Veteran's VA claims folder and provide an opinion, with supporting rationale, as to: A) Is at least as likely as not, i.e., a 50 percent probability or greater, that any identified low back disability is due to an injury or disease that occurred during the Veteran's period of active duty service? B) Is at least as likely as not, i.e., a 50 percent probability or greater, that any current identified low back disability was caused or aggravated (permanently worsened beyond normal progression) by her service-connected left knee disability? Complete rationale should be provided for all opinions expressed. 5. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review 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 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). _________________________________________________ H. N. SCHWARTZ 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).