Citation Nr: 1314646 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 12-04 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from March 1981 to October 1996. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Since the claim requires further development before being decided on appeal, the Board is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the additional delay that inevitably will result from this remand, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. VA has a duty to make reasonable efforts to assist him in obtaining evidence necessary to substantiate this claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). He served in the Navy for a little more than 15 years as a submarine nuclear propulsion plant supervisor and as a recruiter. See his DD Form 214. He claims that in 1986 during his second tour aboard the USS Michigan he had a slip-and-fall accident. See the transcript of his May 2011 hearing before a local Decision Review Officer (DRO). He says that he missed several rungs on a ladder as he was climbing down, slipped, and landed on his feet, but jarred himself. In spite of the injury, he played softball the same day, but injuring his back "even more." The next day, he sought treatment from a corpsman aboard the ship and the corpsman reportedly diagnosed a strained muscle and prescribed Ibuprofen. The pain was intermittent and continued throughout the remainder of the Veteran's service, however. He claims that, whenever he experienced a recurrence of flare-up, he just self-medicated with the Ibuprofen. He maintains that he sought VA treatment for that claimed injury beginning in 1998, so two years after his discharge, and that his treatment has continued on an ongoing basis ever since. On the basis of these statements and hearing testimony, the RO requested these post-service VA treatment records. But the RO found that the earliest record of VA treatment dates only from 2002, not instead back to 1998. See February 2012 Statement of the Case (SOC). In 2002, "C-spine films show[ed] minor narrowing of C3-4 foramen on the right, and minor degenerative changes at C5-6 and C6-7 without narrowing." See February 2002 VA treatment record. In September 2003, he was diagnosed with spondylitis of the cervical spine. See September 2003 VA treatment record. In May 2009, he reinjured his back in a workplace accident. He reported the pain as being a 10 on a 10-point scale and was "barely able to walk." See May 2009 VA treatment record. A CT scan of his L-spine showed "L3-L4 disc bulge and probable small disc herniation into right lateral recess." There was a "4 mm calcific density posterior to disc space [that] may represent an old calcified disc fragment. Mild disc bulges L4-L5 and L5-S1, hypertrophic changes in facet joints with mild bilateral bony naural foramen narrowing." This finding of "an old calcified disc fragment" tends to bolster his claim of his alleged injury in service, although it is unclear whether this disc fragment was affecting the lumbosacral versus cervical segment of his spine. Regardless, he was also noted to have a "long history of intermittent self-limited low back pain since a strain injury at age 26", so possibly dating back to his time in service and, in particular, to the alleged injury in question. He filed a workmen's compensation claim, and his treatment resulted in an October 2009 EMG that revealed "axonal sensory neuropathy in the bilateral lower extremities." See October 2009 private treatment record. In July 2009, two months after that workplace injury, he had filed his VA claim. In adjudicating his claim, the RO requested his service treatment records (STRs). However, his STRs could not be located, and the RO notified him of this in November 2009. 38 C.F.R. § 3.159(e)(1). He resultantly was instructed to provide any STRs in his personal possession, but he apparently did not have any, so none were submitted. The only STR located was the report of his February 1981 enlistment examination, which, since far preceding the alleged 1986 incident, is unavailing. The RO consequently denied the claim in the April 2010 rating decision at issue, and this appeal ensued. In McLendon v. Nicholson, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must provide a VA medical examination for a medical nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of the disability may be associated with the Veteran's service or a service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or persistent or recurrent symptoms "may be" associated with the established event in service, is a "low threshold". McLendon, 20 Vet. App. at 83. When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, the Veteran continues to receive treatment for his ongoing low back pain. See, e.g., DRO Hearing transcript (noting his treatments have gone from every three to every six months); July 16, 2010 VA treatment record ("patient continues to complain of back pain"); May 20, 2011 VA treatment record ("in pain due to herniated discs"). Also, the VA treatment records earlier mentioned suggest the calcified disc may represent an old injury, so possibly the one that he says occurred during his military service. There also is his intercurrent 2009 workplace injury, however, as also the possible source or cause of the current back disability. So the Board finds that a VA compensation examination and medical nexus opinion are needed to assist in deciding this claim since, at present, it is unclear what extent of his current disability is attributable to that intervening workplace injury in 2009 versus the injury he says he earlier sustained during his service aboard ship in 1986. When, as here, at least a portion of the records concerning the Veteran's service are missing, through no fault of his, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain all treatment records concerning the Veteran's back disability from the local Manchester VA Medical Center (VAMC) dated since May 2011 and associate them with the claims file for consideration. Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many attempts to obtain these records as are necessary to comply with this VA regulation. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule an appropriate VA compensation examination for a medical nexus opinion concerning the etiology of the Veteran's back disability. He is hereby advised that failure to report for this VA examination, without good cause, may have adverse consequences on this pending claim since this will result in deciding this claim based on the existing evidence of record. See 38 C.F.R. § 3.655. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. Based on a comprehensive review of the claims file, as well as the clinical examination of the Veteran, the examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) that any current back disability - regardless of the segment of the spine affected, cervical, thoracic or lumbar - is related or attributable to the slip-and-fall injury the Veteran alleges to have sustained in 1986 while stationed aboard the USS Michigan. Or is it, instead, more likely his current back disability is the result of the more recent workplace injury in 2009? It therefore is essential the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. If at all possible, it is requested the examiner provide definitive comment. If, however, the examiner simply cannot provide this requested medical opinion without resorting to mere speculation, then he/she needs to expressly indicate this but, as importantly, discuss why a response is not possible or feasible, such as by clarifying whether additional evidence, information or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another and the limits of medical knowledge have been exhausted in the subject matter area, or whatever may be the case. So, in other words, merely saying he/she cannot respond will not suffice. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental SOC (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen 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).