Citation Nr: 1318028 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-17 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a thoracic spine disability, to include compression fracture of the thoracic spine with degenerative changes. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In that decision, the RO found that new and material evidence had not been received to reopen a claim of service connection for a compression fracture of the thoracic spine with degenerative changes. In February 2010, the Board reopened the claim and remanded for further development. The Veteran provided testimony before an Acting Veterans Law Judge (AVLJ) at a hearing in July 2009. A transcript of the hearing is in the file. At that hearing, an attorney appeared on the Veteran's behalf. At approximately the same time, a VA form 21-22a was received in which the Veteran purported to appoint the attorney as his representative. In November 2011, the RO determined that the attorney representative was not accredited by VA, and therefore declined to recognize the appointment. 38 C.F.R. § 14.629(b) (2012). Both the attorney and the Veteran were notified of the situation and of the necessary steps needed for accreditation. Although the attorney subsequently became accredited by VA, a new VA form 21-22a would be necessary to appoint the attorney as the Veteran's representative. 38 C.F.R. § 14.629(c)(1) (2012) (providing that after accreditation an attorney may represent a claimant by submitting a completed VA form 21-22a). Additionally, in February 2012, the Veteran was notified that the AVLJ was no longer at the Board and the Veteran was given the option of having a new hearing. In March 2012, he requested to appear at a hearing before a Veterans Law Judge via video conference at his local RO. In April 2012, the Board remanded this claim for a hearing. He was initially scheduled for a hearing in August 2012, but the hearing was postponed because the Veteran said his attorney was recently accredited and he wanted to reschedule the hearing. The hearing was rescheduled for November 2012 and appropriate notice is in the file (no mail was returned as undeliverable), however, the Veteran did not appear for the hearing. No good cause was given for the failure to appear at the hearing. No current valid appointment of representation form (VA 21-22a) is in the file. The Board finds the Veteran is currently still unrepresented. In January 2013, this matter was remanded for further development. 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 Pursuant to the February 2010 Board remand, the Veteran received a VA examination in June 2011 so that an opinion could be given as to: 1) whether there was clear and unmistakable evidence that a thoracic spine disability preexisted entrance into service; 2) if it preexisted, whether there was clear and unmistakable evidence a thoracic spine disability did not undergo an increase in service or 3) if it preexisted, whether there was clear and unmistakable evidence that any increase in the thoracic spine disability was due to the natural progress of that disability. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The June 2011 examiner did not address these questions; but instead opined that it was "not at least as likely as not" that the thoracic spine injury pre-existed service and was not aggravated in service. Thus, pursuant to the January 2013 Remand, it was requested that the June 2011 provide an addendum opinion using the proper standard. In January 2013, the June 2011 examiner reviewed the claims folder. The examiner opined that there is no clear and unmistakable evidence that the thoracic compression fractures existed prior to military service. The examiner stated that the only unmistakable evidence would be thoracic spine imaging demonstrating the said compression fractures. The examiner stated that as there is no thoracic spine imaging from prior to military service, there is no clear and unmistakable evidence that the condition was pre-existing. In light of this examiner's opinion that there is no clear and unmistakable evidence that the Veteran's compression fractures pre-existed his period of service, the Veteran's claim must be addressed pursuant to the "direct" service connection regulations. The Board notes that service treatment records showed a compression fracture of the thoracic spine with degenerative changes, complaints of and treatment for pain in the dorsal spine, and evidence that the Veteran was put on a limited physical profile due to his back injury. At the July 2009 Board hearing, the Veteran testified that he sustained a compression fracture injury when he slipped on a log, fell, and hit his back on a picnic table during basic training. The Veteran maintained that he was instructed to keep going with basic training and to tell examiners that his compression fracture injury preexisted service. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In the June 2011 opinion, allude to a back injury secondary to a workers' compensation injury that occurred in 2002, but records of the 2002 injury note only a history of treatment for thoracic disability, but do not report that the current injury involved the back. The June 2011/January 2013 VA examiner should be requested to provide an opinion as to whether the Veteran's current back disability is due to service or any incident therein. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the June 2011/January 2013 VA examiner, or, if unavailable, have a new VA examiner review the file. The examiner should state the claims file was reviewed and a copy of this remand should be in the claims file. The examiner should give an opinion by answering the following question and explaining the answer with relevant facts: Whether current thoracic spine disability at least as likely as not (a 50 percent or higher degree of probability) is related to the compression fracture and abnormal findings noted on X-ray examination during service, or otherwise had its onset in service or whether arthritis manifested by painful motion and X-ray evidence was shown within the year immediately following service, or is otherwise related to service. The examiner must provide reasons for the opinion given. If the examiner is unable to provide an opinion without resort to speculation, she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report back injuries in service, his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner should presume that the Veteran's reports of injuries in service are accurate. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. If deemed necessary, the Veteran should be scheduled for an examination and thereafter opinions should be proffered. 2. If the issue remains denied, issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise 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). _________________________________________________ Mark D. Hindin 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).