Citation Nr: 1316503 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 00-09 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for left upper lumbar back strain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran enlisted in the U.S. Navy Reserves in 1942, but was released into inactive duty status shortly thereafter. In May 1943, he was recalled to active duty, but was found physically unqualified for active duty and released from service prior to reporting. The Veteran later served as a member of the Army National Guard from October 1977 to October 1980. During that time, he completed active duty for training from July 7, 1979 to July 21, 1979. Subsequently, he was a member of the Army Reserves from 1980 to November 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2004, the RO determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a back disorder, claimed as secondary to deformity of the second toe on the left foot. In a September 2009 decision, the Board determined that new and material evidence had been received to reopen the service connection claim and remanded the underlying claim for additional development. The agency of original jurisdiction (AOJ) subsequently granted service connection for left upper back strain in a February 2010 rating decision and assigned an initial 10 percent rating, effective November 21, 2003. The Veteran perfected a timely appeal as to the assigned disability rating. In November 2012, the Board remanded the appeal for additional development. In the November 2012 remand, the Board also remanded a reopened claim of entitlement to service connection for a deformity of the third toe on the left foot. However, the AOJ subsequently issued a March 2013 rating decision granting service connection for deformity of the third toe on the left foot. As the March 2013 rating action represents a full grant of the benefits sought with respect to that issue, and the Veteran has not submitted any notice of disagreement (NOD) as to the assigned effective date or disability rating, the issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In August 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the New Orleans RO. A transcript of that hearing is of record. The transcript reflects that the Veteran was afforded an extensive opportunity to present hearing testimony, evidence, and argument on the issue herein decided. Appropriate colloquies were conducted between the Veteran and the undersigned in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999). See also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). As the Veteran raised a claim of entitlement to eligibility for VA nursing home care in a February 2013 letter, but such claim has not yet been adjudicated, the Board REFERS it to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals VA treatment records dated through January 2013, which have been considered by the AOJ in the March 2013 supplemental statement of the case. 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 Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that VA fulfills its duties to notify and assist the Veteran in order to create a complete record upon which to decide his claim for an increased initial rating for his service-connected back disability so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In November 2012, the Board remanded the claim for additional development. The Board specifically directed the AOJ to assist the Veteran in gathering additional records and to obtain a medical opinion as to the nature and severity of his service-connected back disability. Although additional records have been added to the claims file, the most recent VA treatment note from the Alexandria, Louisiana, VA Medical Center within the (virtual) file is dated January 28, 2013 and, in a letter received by VA in late February 2013, the Veteran reported the existence of outstanding pertinent VA treatment records. He specifically reported receiving inpatient hospital treatment for his back from February 11 through February 16, 2013. Moreover, the Veteran reported that, since the December 2012 VA examination, he had experienced constant and sharp sacro-iliac pain and additional impairment of his mobility due to back pain. The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. Further, 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 or not 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). Therefore, a remand is necessary in order for the AOJ to obtain any outstanding records of VA treatment and associate any available records with the claims file before appellate review proceeds. In the November 2012 remand, the Board also directed the AOJ to request that the Veteran submit an authorization allowing VA to obtain records from a private provider, Dr. Savoy, and to identify any other private health care providers who had treated him for his back disability. Although the Veteran did not respond to these requests, he should be afforded another opportunity to identify or submit any pertinent outstanding private treatment records since his appeal is again remanded for additional development. Additionally, pursuant to the Board's 2012 remand instructions, the Veteran was afforded a VA examination in December 2012. The examiner determined that the Veteran had the service-connected back disability - left upper lumbar back strain associated with hammer toe deformity - as well as non-service-connected degenerative disc/joint disease of the lumbar spine and non-service-connected lumbar radiculopathy of the left lower extremity. Although the examiner provided an opinion that these back disorders were all "separate," implying that their disabling effects could be distinguished, she provided only assessment of their combined effects. As such, the record is not clear as to whether it is possible to separate the effects of the service-connected spinal disability from the non-service-connected spinal disabilities - a determination that bears directly on the rating of the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). Therefore, the Board finds that a clarifying opinion is necessary to determine whether or not the effects of the service-connected spinal disability can be distinguished from the effects of the non-service-connected spinal disabilities. 38 C.F.R. § 4.2 (when an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). The Board also finds that remand is necessary in order to obtain a retrospective medical opinion regarding the severity of his service-connected spinal disability (or the combined severity of all of his spinal disabilities if disabling effects cannot be separated). See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Veteran has been awarded an initial 10 percent disability rating for his service-connected spinal disability effective November 21, 2003, but the 2012 examiner's assessment was limited to the current severity of spinal disability. Further, the claims file reflects only one other VA spinal examination during the appellate period - a 2009 examination that was focused on the etiology, rather than severity, of the spinal disability. Therefore, upon a review of the record, to include the Veteran's February 2013 statement alleging additional impairment as well as any newly received treatment records, the examiner should provide a retrospective opinion as to the effects of the Veteran's service-connected back disability for the period from November 21, 2003 to the present. 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. Obtain all VA treatment records from the Alexandria VA Medical Center dated from January 28, 2013, to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to identify or submit any additional private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file to specifically include, but not limited to, records from Dr. Savoy. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After the above development has been completed and all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's December 2012 VA spinal disorders examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the December 2012 VA examiner is not available, the claims file should be provided to another appropriate medical professional so as to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the claims file, to specifically include consideration of any evidence of worsening since December 2012 as well as a discussion of the Veteran's treatment history and lay statements (pertinent to the back disability) since November 2003, the examiner should offer an opinion as to whether it is possible, within a reasonable degree of medical certainty, to separate the effects of the service-connected spinal condition (left upper lumbar back strain) from the non-service-connected conditions as identified in the December 2012 VA examination report. If determining that it is possible to separate the effects of the service-connected spinal disorder from the non-service-connected disorders, the examiner should provide an opinion as to the nature and severity of the left upper lumbar back strain, alone, for the period from November 21, 2003 to the present. If it is not possible to separate the effects of the service-connected disorder from the non-service-connected disorders, all such signs and symptoms should be attributed to the service-connected condition and the examiner should provide a retrospective opinion as to the combined effects of all such spinal disabilities for the period from November 21, 2003 to the present. The offered opinions must be accompanied by supporting rationales. 4. After completing any additional other development as may be indicated by responses received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for an initial rating in excess of 10 percent for service-connected lumbar strain should be readjudicated, to include consideration of any appropriate staged ratings, based on the entirety of the evidence. If the appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ A. JAEGER 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).