Citation Nr: 1314704 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-13 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a foot disorder, claimed as plantar fasciitis. 2. Entitlement to service connection for a neck disorder, claimed as cervical disc displacement. 3. Entitlement to service connection for a low back disorder, claimed as degenerative disc disease. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The appellant served with the Army National Guard for the State of New Jersey from April 1965 to April 1971, including active duty for training (ACDUTRA) from May to October 1965. This matter is on appeal from the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge in January 2010. A transcript of the hearing is of record. This case was remanded by the Board in October 2011 for further development. At this juncture, another remand is needed in order to fully develop the claim. As an initial matter, the Board notes that in a September 2012 supplemental statement of the case, the Appeals Management Center included and readjudicated the Veteran's claim of service connection for residuals of a head injury. The record shows, however, that the Veteran withdrew such claim at the January 2010 Board hearing, and that such claim was dismissed by the Board in October 2011. Accordingly, that matter is no longer on appeal. 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 appellant contends that he sustained disabilities of the neck, low back, and feet in an October 1967 motor vehicle accident during a period of ACDUTRA or INACDUTRA. Specifically, he alleges that in late October 1967, during weekend National Guard duty at Ft. Dix, he was traveling south on the New Jersey Turnpike when the military vehicle he was riding in was struck from the behind by a tractor trailer, which caused the truck to hit a guard rail, turn over, and roll down an embankment. According to the appellant, he was bleeding and was taken to the hospital for treatment. He further maintains that he has cervical spine and low back disorders, as well as disorders of both feet, as a result of the accident; the record confirms current disorders of the neck, low back, and feet. A private physician noted that the appellant's neck disorder could be related to the motor vehicle accident. Another private physician reflected that the appellant's foot disorder was due to the motor vehicle accident. Significantly, neither medical professional offered a rationale. The claim was initially denied because the evidence did not show that the accident actually occurred or confirm the appellant's duty status at the time. During the pendency of the appeal, he submitted newspaper articles dated contemporaneously with the accident reflecting that 18 soldiers were hurt when an Army truck was hit by a tractor-trailer in the southbound lane of the New Jersey Turnpike. He submitted other articles containing the same information and indicating that that the Army truck was bound for Ft. Dix. The articles named J.M. as the driver of the truck that hit the military vehicle. The appellant also supplied information regarding a lawsuit he filed against a truck rental company and a truck driver named J.P.M. The Board notes that the last name of the driver in the lawsuit is identical to that of the driver named in the October 1967 newspaper articles. The lawsuit concerned injuries sustained in an accident on the New Jersey Turnpike that occurred in October 1967. Based on the evidence above, the Board finds the appellant's assertions credible regarding his involvement in a motor vehicle accident in October 1967, as his current recitation of events is consistent with contemporaneous evidence. Next, an attempt was made to confirm the appellant's duty status at the time of the accident. In a May 2012 memorandum, the RO made a formal finding regarding the unavailability of National Guard duty records. While his points record showed that he was in the National Guard, his duty status in October 1967 could not be verified. The record contains verification only as to a period of ACDUTRA from May to October 1965 and service treatment records covering that period alone. Nonetheless, having determined that the appellant was involved in a motor vehicle accident in an Army vehicle in October 1967, the Board finds that it is reasonable to assume that he was in some kind of duty status - either active duty training (ACDUTRA) or inactive duty training (INACDUTRA) - at the time of the accident. He has maintained, and it seems reasonable to conclude, that he was on INACDUTRA as he has characterized his status as on a weekend drill and the accident occurred on a Friday. Annual training is an example of ACDUTRA while weekend drills are INACDUTRA. As the Board finds that since the appellant was in a duty status and has claimed a disability based on an "injury," no further clarification is needed as to whether he was on ACDUTRA or INACDUTRA because a claim based on "injury" is available under either type of duty status. 38 U.S.C.A. §§ 101(22), 101(24); 38 C.F.R. § 3.6 (the term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a "disease or injury" incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an "injury" incurred or aggravated in line of duty); see also Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty). Having determined that the appellant was involved in an accident while on duty status, the Board finds that an examination and opinion is needed with respect to the claims on appeal. Specifically, the evidence shows current disorders, an in-service event (the motor vehicle accident), and private medical statements that associate the current disorders with service. As the private statements offer no rationale for the findings, there is insufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a remand is needed. Accordingly, the case is REMANDED for the following actions: 1. Schedule the appellant for appropriate examination(s) for medical opinions regarding the relationship between his feet, neck, and low back complaints and a period of service. For purposes of the opinion, the examiner is asked to accept that the appellant was in a motor vehicle accident in October 1967 (newspaper clipping about the accident are part of the claims file) and that he was in duty status at the time of the accident. The claims folder must be made available to the examiner(s) in conjunction with the examination(s). Any testing deemed necessary should be performed. Specifically, the examiner(s) is/are requested to express medical opinion(s) as to the following: • Does the record establish that it is more likely than not (i.e., probability greater than 50 percent) that the appellant's feet (diagnosed as plantar fasciitis), neck (diagnosed as disc herniation at C4-C5 with moderate spinal stenosis), and low back (diagnosed as small central disc herniation at L5-S1 without stenosis) disorders are the result of a motor vehicle accident in October 1967? • In responding to this question, the examiner should indicate the degree to which the opinion is based upon the objective findings of record as opposed to the history as provided by the appellant. 2. Thereafter, re-adjudicate the issues on appeal. If the benefits sought remain denied, the appellant and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issues as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ L. HOWELL 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).