Citation Nr: 1317009 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-18 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran had an honorable period of active duty from September 1975 to September 1978, as well as a period of active duty from October 1978 to October 1982, which was characterized by an other than honorable discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. 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. REMAND As noted in the Introduction, the Veteran had two periods of active service. The first period of service, from September 1975 to September 1978, is recognized as honorable service. The second period of service, from October 1978 to October 1982, resulted in an other than honorable discharge. An unappealed July 1983 Administrative Decision determined that the second period of service was not considered as honorable service for VA disability compensation purposes. The Veteran submitted his initial claim for VA disability compensation in June 2000. Prior to that time the Veteran had extensive dealings with VA through the use of his education benefits. The Veteran said he was seeking service connection for low back pain due to an injury that occurred prior to service but was aggravated due to his military service. He listed treatment at an Army dispensary at two locations in Germany. The Veteran also listed several VA medical centers (VAMCs) where he had received treatment in the years between 1984 and 2000. Finally, the Veteran reported that he had had no Reserve or National Guard service. The Veteran's service treatment records (STRs) were obtained, apparently for both periods of service. VA treatment records dated in 1998 and 2000 were obtained. The ROIC in Philadelphia denied the claim in January 2002. The determination was that the STRs, for the first period of service, did not reflect evidence of a chronic back condition. The Veteran submitted his notice of disagreement (NOD) in August 2002. There is nothing further in the claims folder until a submission from the Veteran was received in March 2006. The Veteran said he wanted to amend his claim to add that he injured his back in 1977 when he fell off a 21/2 ton truck while unloading a 2.75 [inch] rocket launcher. He reported receiving treatment in service and being placed on a profile. He listed treatment from VAMCs in Miami, Florida, Nashville, Tennessee, Lebanon, Pennsylvania, and Pittsburgh, Pennsylvania. The Veteran submitted a statement in May 2007. He said he had a bullet in his back when he entered the service in 1975. He said this was identified with x-rays taken during his enlistment physical examination. He repeated his contention that he fell from a truck in service in 1977. He said he received treatment for his back pain in service and had received treatment from multiple VAMCs since service. Limited VA treatment records were obtained in June 2007. The records came from several VA facilities in Pennsylvania and Florida and covered a period from March 2000 to May 2007. The records document longstanding complaints of low back pain. The Veteran was issued a statement of the case in March 2008. He perfected his appeal in April 2008. He was in California at that time. The Veteran's appeal was not immediately forwarded to the Board. He submitted a statement in August 2009 wherein he asked about his claim. He was now in Florida and wanted to reopen the claim if a decision had been made. He noted that he had been homeless since 2002 with no permanent address. The Veteran's case was forwarded to the Board in May 2010. The Board remanded the case for additional development in June 2010. In particular, the Veteran was to be afforded a VA examination for the purposes of identifying any existing low back disability and providing an opinion as to a possible nexus to the Veteran's first period of service. The Veteran was scheduled for the examination in June 2010 but failed to report. The Veteran was issued a supplemental statement of the case (SSOC) in June 2010 and his case was returned to the Board. The Board issued a decision that denied the Veteran's claim in September 2010. The Board noted that the post-service medical evidence had not provided a diagnosis of a back disability - only multiple notations of back pain. It appears that, while the Veteran's claim was on appeal to the Board, he submitted an electronic claims form in July 2010. He reported that he was located in Pennsylvania. The Veteran provided a description of his being taken into service with a bullet still in his back. He related his contention of how he fell from a truck during his first period of service and that this aggravated his pre-existing disability. The Veteran listed specific military healthcare providers and dates of treatment but these were all from his second period of service and the names and dates provided clearly correspond to STR entries from 1979 to 1982. The Board notes the Veteran had been provided a copy of the STRs from his second period of service. On page 5 of the electronic form, the Veteran reported that he served in the National Guard. He said he served from January 20, 2000, to August 15, 2000, in Coatesville, Pennsylvania. He also said he was activated under Title 10 United States Code but did not provide any additional information in this regard. He did not report this information with his initial claim that was received in June 2000. The ROIC in Philadelphia wrote to him about his "pending" claim in August 2010. The letter advised the Veteran about the expedited claim adjudication (ECA) initiative. The Veteran was asked to provide evidence to support his claim. The Veteran responded in August 2010. He submitted copies of STR entries from his second period of service that detailed treatment related to low back pain. He also provided a statement that described in detail how he fell in service and injured his back. He further described how he was in such bad pain in 1984 he had to call an ambulance to take him to the VAMC in Pittsburgh for treatment. The Veteran also submitted a VA Form 21-4142, Authorization for Release of Information, listing his source of medical treatment as "VAMC-USA." The Veteran was afforded a VA examination in October 2010. The examiner noted that she had reviewed the claims folder and medical records. She noted the treatment received during the second period of service. A current x-ray report noted that there was a metallic bullet fragment posterior to L5 and mild to moderate degenerative changes, most pronounced at L4-L5 and L5-S1. The examiner opined that the Veteran's current disability would not be related to service as the condition was acute and transitory with no record of chronicity or continuity of treatment. In regard to whether the pre-existing injury of the retained bullet was aggravated beyond its natural progression during service, the examiner said that the x-ray findings appeared to be a natural progression of the bullet wound injury. She again cited to a lack of evidence to support chronicity or continuity of care related to the reported fall in 1977. Additional VA treatment records for the period from June 2009 to October 2010 were obtained. The Veteran submitted a lengthy statement in October 2010. He noted that he never received notice of the June 2010 VA examination as he had relocated to Pennsylvania prior to that time. He also listed a number of VAMCs where he said he had received treatment over the years and that VA had not obtained the records. The ROIC in Philadelphia issued a rating decision that denied service connection for a back disability in April 2011. The Board notes that the above development was undertaken during the time the same issue was on appeal to the Court of Appeals for Veterans Claims (Court). The Veteran had appealed the Board decision of September 2010 to the Court. In a Joint Motion for Remand (JMR), the parties agreed to remand the case back to the Board. It was stated that the Board had found no medical evidence of a current disability but had failed to fully discuss the competency of the Veteran's lay statements to provide evidence of a current disability. There was also a reference for the Board to take any action necessary to ensure compliance with the requirements of the remand of June 2010. It must be remembered that, at the time of the Board decision, there was no record of a VA examination. The Court issued an order that returned the case to the Board for compliance with the Joint Motion. The Board remanded the case for additional development in February 2013. In particular, the Board directed that outstanding VA and private medical records should be obtained and associated with the claims folder. If additional evidence was received, the claims folder was to be provided to the VA examiner from October 2010. She was to be requested to provide an addendum to her opinion in light of the additional evidence. The Board notes that no additional medical evidence was added to the claims folder on remand. The AMC did obtain additional VA treatment records and those records were included in the Veteran's electronic records in Virtual VA. A review of the medical records listed in Virtual VA shows that three separate batches of records were received on March 7, 2013. The records were from several VAMCs, consisted of a total of 17 pages and dated back to August 2002. The AMC referred the claims folder to the prior VA examiner. According to the addendum in the claims folder, the VA examiner provided her addendum on March 12, 2013. In her opinion, the examiner stated that "no new material evidence" was added to the claims folder since the examination in October 2010. She said her opinion remained unchanged. The Board notes that six additional batches of VA treatment records were added to Virtual VA on March 21, 2013, after the addendum was provided. Five of the batches were identified as records in the CAPRI system and one batch was listed as "Pending Category Assignment." There were a total of 195 additional pages of records dating from March 1998 to February 2012. In reading the addendum provided, it is not clear that the VA examiner reviewed any of the electronic medical records added and available for the Veteran. Given the date of the addendum of March 12, 2013, it is clear she did not have the opportunity to review the records added to Virtual VA as of March 21, 2013. In addition, a review of the Pending Category Assignment records, 122 pages of treatment records from Coatesville, there are two entries dated in May 1998 that report the Veteran had joined the National Guard. Upon review of the evidence of record, the Board finds that another remand is required in this case. This includes seeking additional VA records identified by the Veteran with his original claim in June 2000. The Board notes that the Veteran specifically listed treatment at the Pittsburgh VAMC from 1984 to 1986. He referenced being taken by ambulance to that VAMC in 1984 in his statement of August 2010. He also listed treatment at the VAMC in Las Vegas, Nevada from 1993 to 1994. The records from the other VA facilities he listed appear to be included in the claims folder or in Virtual VA. The Veteran submitted additional information about his VA treatment in his statements from March 2006 and May 2007. The Board notes that records from Wilmington, Delaware/Philadelphia, Oklahoma City, Oklahoma, Miami, Coatesville, and Lebanon, Pennsylvania, have been obtained. However, there is no indication that records from the VAMC in Seattle, Washington, have been requested. Also, as noted, the earlier records from VAMC Pittsburgh remain outstanding. The Veteran's statement of October 2010 also listed several VAMCs where he received treatment. Those records, with the exceptions of Las Vegas and the early records from Pittsburgh, appear to be included in Virtual VA. The Veteran reported National Guard service with his electronic submission of July 2000. He also reported having joined the National Guard as noted in the VAMC Coatesville records dated in May 1998. Given the Veteran's location in Pennsylvania at those times, it would appear that, if he had National Guard service, it would be with the Pennsylvania National Guard. On remand the Veteran should be contacted for specific information about any National Guard service subsequent to 1982. Finally, given that the prior medical opinion addendum did not have the benefit of a review of at least all of the additional medical evidence, a new examination is required. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed back disabilities since 2010. The AMC/RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. Even if the Veteran does not respond, the AMC/RO must contact the VAMCs in Pittsburgh and Las Vegas and request treatment records for the Veteran. The dates of treatment were provided by the Veteran with his claim of June 2000. Pittsburgh was 1984-1985 and Las Vegas was 1993-1994. Records from VAMC Seattle and VAMC Nashville should also be requested. Even if the records have been retired, they must be recalled and either included in the claims folder or Virtual VA. 2. The Veteran must be contacted and asked to identify any and all periods of National Guard service. He failed to note such service with his initial claim but reported National Guard service from January to August 2000 with his electronic claim in July 2010. He also reported joining the National Guard in VA treatment entries dated in May 1998. Even if the Veteran does not respond, the Adjutant General of the Pennsylvania National Guard should be contacted and all personnel and service treatment records for the Veteran should be requested for any and all periods of service with the Pennsylvania National Guard. 3. Only upon completion of all of the above requested development should the Veteran be afforded a VA examination. Providing the examination prior to the completion of the other development may result in an additional remand as the requested records must be obtained and available for the examiner to review. The claims folder, any electronic medical records, and a copy of the remand section of this decision must be provided to the examiner and reviewed as part of the examination. The examiner should indicate in the report that he has reviewed the claims folder and any electronic medical records for the Veteran as well as the remand section of this decision. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. Any medical records relied on by the examiner must be included in the claims folder or be available through Virtual VA. The examiner is advised that the Veteran has two periods of military service, unless additional service has been confirmed on remand. The first period from September 1975 to September 1978 is considered honorable service and a disability that is incurred or aggravated during this period of service may be service connected. The Veteran's second period of service, from October 1978 to October 1982, has been determined not to be honorable service and a disability incurred or aggravated during this period may not be service connected. The examiner is further advised that the Veteran's service treatment records (STRs) for his first period of service are missing. They were of record at the time of the initial rating decision in January 2002. The Veteran has admitted that he enlisted in service with a bullet embedded in his back. He initially sought aggravation of this as a pre-existing disability. He later provided information of a separate back injury where he fell from a truck while off loading a rocket launcher in 1977. The Board previously determined that the Veteran was competent to provide evidence of a back injury from the fall and that he was also credible in that regard. Thus, consideration of this event must be given despite the lack of contemporaneous medical records from 1977. The Veteran's STRs for his second period of service are of record. They do document a number of instances of complaints of low back pain. Although, the STRs cannot be used to establish the occurrence or aggravation of a disability during that period, the STRs may still be considered evidence of a continuing problem from the prior period of service if that is the opinion of the examiner. Prior to the current remand, the only post-service treatment records available were dated in 1998 and were very limited. A VA examiner in October 2010 found that the lack of a continuity of treatment was significant in determining that there was no current disability related to service. The examiner is requested to identify any and all disorders of the low back that are present. The examiner is also asked to express an opinion as to whether any currently diagnosed back disorder is related to the Veteran's military service from September 1975 to September 1978. Should the examiner not find that any current disorder is related to the Veteran's service from September 1975 to September 1978, the examiner is requested to provide an opinion as to whether any pre-existing lower back disorder was aggravated beyond its natural progression by his first period of active service from September 1975 to September 1978. The examiner should specifically discuss the Veteran's contention that his pre-existing gunshot wound was aggravated when he fell off a truck in service. A complete rationale for any opinion expressed must be provided. If the examiner concludes that an opinion cannot be provided without result to speculation, the examiner must provide a rationale for this conclusion and should state whether the inability to provide an opinion is due to a need for further information (with the needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's disability. 4. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). Failure to ensure the adequacy of the examination reports may result in another remand. 5. After undertaking any other development deemed appropriate the AMC/RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran, and his representative, should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the AMC/RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ MICHAEL MARTIN 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).