Citation Nr: 1317243 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-28 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to May 1981. He has subsequent service in the ready reserves from May 1981 to October 1984 and in the Army and California National Guard from March 1989 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the benefit sought on appeal. In August 2009, the Veteran withdrew his request for a Travel Board hearing. See 38 C.F.R. § 20.704(e) (2012). 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 Board sincerely regrets the additional delay in adjudicating the Veteran's claim for service connection for a low back condition. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. The Veteran essentially contends that service connection for his current low back condition, which has been diagnosed as degenerative disc disease and myofascial pain syndrome, is warranted as he allegedly injured his low back during the summer of 1984 when his personal vehicle was rear ended while traveling to a period of reserve military duty. His statements of record suggest that he has experienced chronic low back pain since that time. Despite the Veteran's conflicting statements pertaining to the alleged 1984 motor vehicle accident and claimed low back injury sustained therein, his service treatment and personnel records currently associated with the claims file are sporadic, grossly incomplete, and do not verify the claimed motor vehicle accident or back injury, findings, or complaints of a low back condition at any time during his active, reserve or Army National Guard service. The Veteran's limited service personnel records available for review show Army service in the delayed entry program from October 1978 to May 1979; on active duty from June 1979 to May 1981 (B Co. 27th Maintenance Battalion, 1st Cav. Div. FORSCOM in Fort Hood, Texas), and; in the Army Reserves from May 1981 to October 1984 (342d Military Police Company (EG) in Zanesville, Ohio from May 20, 1981 to May 9, 1983; the 950th Maintenance Company in Van Nuys, California from May 10, 1983 to October 27, 1984). Subsequently, the Veteran enlisted in the Army/California National Guard from March 1989 to March 1990 (HHC 1/184th Armor in San Bernardino, California from March 24, 1989, which was attached to Co. B 1st Bn. 185th Armor in Palmdale, California on June 27, 1989). A NGB Form 22, shows that the Veteran was discharged from the National Guard on March 23, 1990. A subsequent automated PETS Order from the California Office of Adjutant General and a National Guard certificate of general discharge indicates that the Veteran was discharged from the Army National Guard (Svc. Btry. 3/144th FA in Van Nuys, California) effective November 3, 1992, and he was transferred to the Army Reserves Control Group (reinforcement) at that time. During a May 1998 personal hearing at the RO pertaining to an unrelated claim, the Veteran clarified that his last drill unit of assignment was HHC 1st Bn. 185th Armor in San Bernardino, California. While significant development efforts have been undertaken in an attempt to obtain the Veteran's complete service personnel and medical treatment records for all periods of his active, reserve, and Army National Guard service, there is no indication that the Veteran's records have been requested from the Records Management Center (RMC) as directed in a January 2009 records response or from his last reserve and/or National Guard units of assignment as noted in October 2002 correspondence from the RO to the Veteran indicating that correspondence received from the National Personnel Records Center (NPRC) suggested that his service records were in the possession of his Reserve and/or National Guard unit. The October 2002 letter instructed that the Veteran obtain and submit his complete service records for review, however, he did not follow through on that request, nor has VA. Accordingly, additional development efforts are necessary in an attempt to secure the Veteran's complete service treatment and personnel records for review and to verify his contentions regarding a claimed low back injury during service and his alleged involvement in a motor vehicle accident during service or while enroute to or from a period of active or inactive duty for training purposes (ACDUTRA/INACDUTRA). Line of duty determinations pertaining to a low back condition and/or a motor vehicle accident should also be requested. In this regard, given the lack of service personnel records available for review, any periods of ACDUTRA/INACDUTRA have not been verified. A pay record of some sort shows that the Veteran received military pay at some point in 1984, however, any associated dates and types of service for which he was paid cannot be determined from the pay record. Thus, the Veteran's military pay records dating from May 21, 1981 to October 27, 1984, and from March 24, 1989, should be requested from the Defense Finance and Accounting Service (DFAS) in an attempt to verify any periods of active duty, and ACDUTRA/INACDUTRA service. Further, while the Veteran claims that his current low back condition is related to a motor vehicle accident in 1984 for which he did not receive military medical treatment (see January 2009 DRO informal conference report), in his March 2005 claim for service connection, he reported treatment for a low back condition while stationed at Fort Hood, Texas. His service personnel records show that he was stationed at Fort Hood, Texas from November 16, 1979 to May 20, 1981. Accordingly, clinical and inpatient treatment records pertaining to the Veteran and any treatment received at Fort Hood during that time period for a low back condition should be requested. The Veteran's limited service treatment records show that during his March 1989 National Guard enlistment examination, he reported a history of a head injury following a motor vehicle accident in Van Nuys, California in 1975 (pre service) for which he received treatment at an unknown hospital, and a motor vehicle accident in 1985 with loss of consciousness for 15 to 20 minutes and laceration of the left front parietal area. There was no complaint, finding, or diagnosis pertaining to the low back at that time. In an April 2006 letter, however, the Veteran stated that he suffered a head laceration in the motor vehicle accident that he claims to have caused his current low back condition. He also reported private treatment immediately following the accident at Valley Hospital Medical Center, which he said is no longer open, and private chiropractic treatment from Dr. KS, who he said is now dead or retired. VA treatment records dating since 1998 show that the Veteran had difficulty walking and bending in the late 1990s secondary to non service-related burn injuries of his bilateral lower legs and skin grafting from his thigh(s). A May 1999 VA psychiatric treatment note shows that the Veteran reported a history of hospitalization for 3 or 4 days in the 1980s following a motor vehicle accident with loss of consciousness. His first post-service documented complaint of low back pain was in September 2000 when he dated the onset of his low back pain at that time to seven or eight months prior. A November 2003 private lumbosacral spine x-ray showed minor degenerative joint disease at the L5-S1 level. As noted above, VA treatment records show that the Veteran has been diagnosed with multilevel degenerative disc disease of his lumbosacral spine and myofascial pain syndrome pertaining to complaints of low back pain. A March 9, 2006, VA treatment record shows that the Veteran reported a history of low back pain dating since 20 years prior. There is suggestion that his current low back pain may be related to his history of "multiple motor vehicle accidents and other related injuries and/or epidural lipomatosis (suggested on February 2006 lumbar spine MRI)." The Veteran has not been afforded a VA examination with a medical opinion as to the likely etiology of any current low back condition. However, the evidence above suggests that low back complaints may be related to or have had onset during the Veteran's active, reserve, or National Guard service. Accordingly, he should be afforded a VA examination to determine the nature and etiology of any low back condition diagnosed on examination and since the claim for service connection was received in 2005. Finally, ongoing treatment records, if any, should also be obtained, to include any treatment records from the Sepulveda and West LA VAMCs and the Lancaster and Antelope Valley CBOCs dating since May 2009, and any private treatment records from Dr. DS, P.A.C. and Dr. SM, M.D. dating since 2003 as alluded to in the November 2003 lumbosacral spine x-ray examination report. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for any low back condition since his alleged onset of chronic low back pain in 1984, to specifically include any private treatment records from Dr. DS, P.A.C. and Dr. SM, M.D. as alluded to in a November 2003 lumbosacral spine x-ray report. After the Veteran has signed the appropriate releases, if any, those records should be sought. Additionally, ongoing VA treatment records, if any, must be obtained from the Sepulveda and West LA VAMCs and the Lancaster and Antelope Valley CBOCs dating since May 2009. If the RO/AMC cannot locate the requested records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Contact all appropriate records repositories, to include the NPRC, RMC, HRC, and the Veteran's reserve and National Guard units of assignment (see names and dates of unit assignments outlined above), and request his complete service medical and personnel records, to specifically include any line of duty determinations pertaining to a low back condition and/or involvement in a motor vehicle accident as alleged, any limited physical profiles dated in 1984, and any clinical and/or inpatient treatment records from Fort Hood pertaining to a low back condition. All pertinent follow-up must be undertaken. 3. Contact DFAS and request the Veteran's military pay records dating from May 21, 1981 to October 27, 1984, and from March 24, 1989 to determine and verify the specific dates of any period(s) of active duty, and ACDUTRA / INACDUTRA service. 4. Thereafter, prepare a memorandum for the record indicating whether the Veteran's involvement in a motor vehicle accident during service or while enroute to or from any period of service has been verified and outline the specific dates of any period(s) of active duty, and ACDUTRA / INACDUTRA service for review by the VA examiner who provides the medical etiological opinion requested herein pertaining to the Veteran's claimed low back condition. 5. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, onset, and etiology of any currently diagnosed low back condition. All indicated tests must be accomplished. The claims folder, to include any relevant records in Virtual VA, and a copy of this REMAND must be made available to the examiner. The examiner must acknowledge that this review was completed. After examining the Veteran, obtaining a thorough medical history from him, and reviewing all pertinent documents in the claims file, the examiner must opine whether it is at least as likely as not (50 percent or greater likelihood) that any diagnosed disability of the low back had its onset during or was caused or aggravated by any illness, injury, or event during active service or any period of ACDUTRA(injury and/or disease) or INACDUTRA (injury only), to specifically include the claimed 1984 motor vehicle accident as alleged by the Veteran. The examiner must specifically acknowledge and address the Veteran's and his brother's lay statements of record as to his involvement in a motor vehicle accident in 1984 with onset of chronic low back pain at that time which has reportedly persisted ever since, and the significance if any of any progression of degenerative changes shown in 2003, 2006, and 2007 lumbosacral spine MRI and x-ray examination reports. A full rationale for all opinions and conclusions must be provided. 6. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. 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 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). _________________________________________________ DAVID L. WIGHT 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).