Citation Nr: 1317221 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 12-29 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a thoracic and lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from June 1946 to October 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The rating decision reopened the Veteran's claim and denied it on the merits. The Veteran's claims file was subsequently transferred to the VA RO in Huntington, West Virginia. In January 2013, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. His son observed the hearing without offering any testimony of his own. A transcript of the hearing has been associated with the claims file. The record was held open for an additional 30 days to allow the Veteran time to submit additional private medical records. None were received. In March 2013, the Board reopened the Veteran's claim and remanded this case for additional development. The file has now been returned to the Board for further consideration. 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, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, and is cognizant that this matter is advanced on the docket, further development is needed to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). At the time of the Veteran's January 2013 Board hearing, he asserted that he first sought VA treatment for his back disability at the VA Medical Center (VAMC) in Huntington, West Virginia, a "couple" of years after separating from active service. The Veteran filed his first claim of entitlement to service connection for a back disability in March 1977. No VA treatment records were identified or associated with the claims file, and the rating decision which denied his claim cited only his service treatment records and private treatment records. The Veteran filed his next claim in May 2001, and such was denied on the basis that no new and material evidence had been submitted. No VA treatment records were identified or associated with the claims file. The earliest VA treatment records currently associated with the claims file, considering the physical claims file and Virtual VA, are dated in November 2001. Because VA is on notice that there are additional records that may be applicable to the Veteran's claim, specifically his VA treatment records dated prior to 2001, in as early as 1947; and because these records may be of use in deciding the claim, these records are relevant and should be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Also at the time of the Veteran's Board hearing, he asserted that he had private chiropractic treatment. In this regard, related to his first claim, in March 1977, Dr. Ankrum filed a March 1977 summary of treatment in support of the Veteran's claim. In the adjudication of his prior claim, filed in May 2001, the Veteran identified and authorized VA to obtain his private treatment records from Drs. Turner, Ankrum, and Haught. A January 2002 internal notation indicates that records from Drs. Turner and Ankrum no longer existed and records from Dr. Haught were sought. No response was received from Dr. Haught. Related to the current claim, filed in March 2011, no private treatment records have been identified or authorized, and thus the only private treatment records currently associated with the claims file consist of the above-referenced March 1977 summary of treatment from Dr. Ankrum. As noted above, the record was held open for 30 days to allow the Veteran time to supplement the record with any private treatment records. However, to date, he has not done so. On remand, the Veteran should be afforded a final opportunity to identify and authorize VA to obtain his private chiropractic treatment records, or submit them himself. Finally, of record is an April 2013 addendum to the August 2011 VA examination report. The examiner reported, in both opinions, that there was no evidence of back treatment or complaints for 30 years after separation from active service. Indeed, the first instance of back treatment recorded in the claims file is the March 1977 summary of treatment from Dr. Ankrum. Thus, it does not appear that the examiner sufficiently considered the Veteran's lay statements of back symptoms since separation from active service in 1947. Additional comment is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 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 and associate with the Veteran's claims file his treatment records from the VAMC in Huntington, West Virginia, dated from November 1, 1947, immediately subsequent to his separation from active service, to November 26, 2001, the date of the earliest VA treatment records currently associated with the claims file. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Contact the Veteran and provide him VA Forms 21-4142, Authorization and Consent to Release Information to the VA, for any private treatment records he would like VA to obtain. Advise the Veteran that he may submit such records if he so chooses. Attempt to obtain any identified and authorized private treatment records. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 3. Then, forward the claims file to the examiner who conducted the August 2011 examination and who provided the April 2013 addendum. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. Considering any additional evidence added to the claims file, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's current disabilities of the thoracic and lumbar spine were incurred in active service, or are otherwise related to service; specifically, to his February 1947 treatment for low back pain. In responding, the examiner should consider that the term "as likely as not" (at least 50 percent probability) does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In this regard, even if there is no new evidence added to the claims file, the examiner must specifically comment upon the Veteran's statements regarding his claimed in-service low back injury from lifting weights, as well as his statements as to continuous back problems since separation from active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). The examiner must discuss the rationale of any opinion expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to mere speculation, as merely stating this will not suffice. To facilitate providing this necessary information, the claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history. 4. Then readjudicate the Veteran's claim in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant 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 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). _________________________________________________ S. L. Kennedy 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).