Citation Nr: 1318326 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-20 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran had active duty service in the Air Force from March 1977 to June 1992 with additional service in the Reserves noted in the record. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge at a March 2010 hearing held at the RO. A copy of that hearing transcript has been associated with the claims file. The Board previously remanded these claims in July 2010 and May 2012 for further development. In its May 2012 decision, the Board also remanded a claim of entitlement to service connection for a heart disorder. In February 2013, the AMC granted entitlement to service connection for coronary artery disease. As this constitutes a grant of the full benefits sought with regard to that claim it is no longer before the Board. See Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). For reasons discussed below, the issues remaining on appeal - service connection for a neck disorder and diabetes mellitus - are once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. REMAND The Board sincerely regrets further delay to the issues remaining on appeal. However, on review of the record, the Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with its May 2012 remand instructions requesting: (1) outstanding service treatment records related to the Veteran's service in the Air Force Reserves, and (2) adequate VA medical examinations and opinions regarding the etiology of the Veteran's claimed disabilities. As such, remand of these claims is once again warranted. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed in the May 2012 remand, the AMC attempted to obtain the Veteran's missing Reserve service treatment records from the Records Management Center (RMC) in July 2010, but received no reply. In light of VA's duty to assist, the Board directed the AMC to re-contact the RMC and either obtain the records or a negative reply. See 38 C.F.R. § 3.159(c)(3). The Board further indicated that reasonable efforts to obtain these missing records included contacting the Veteran's various Air Force Reserve Units, which the Veteran supplied significant information about in his June 2007 substantive appeal. Review of the record reveals that the AMC re-contacted the RMC in June 2012 regarding the Veteran's Reserve records and received a negative reply later that same month. Pertinent to the reasons for this remand, there is no indication that the AMC made any attempt to contact the Veteran's Reserve Units, as directed. As previously noted, the Veteran has alleged receiving physicals demonstrating his disabilities while in the Reserves. Hence, remand is once again necessary such that the AOJ may undertake reasonable efforts to obtain the missing service treatment records. See id. The Board notes that where 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 one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consistent with the May 2012 remand, the Veteran was scheduled for a VA diabetes mellitus examination in July 2012. The Veteran had previously undergone evaluation by VA for this claimed disease, but the examiner's report failed to include any rationale for the opinion that it is less likely than not that his diabetes is related to service or a period of active duty for training (ACDUTRA). Here, the July 2012 VA examination report reflects a similar opinion; the examiner's stated rationale is that "Agent Orange exposure has not been conceded." The Veteran has never contended, nor has the Board suggested, that his diabetes mellitus is related to Agent Orange exposure. Rather, as discussed in earlier remands, the Veteran contends that service connection is warranted for this disease because although a formal diagnosis was not made until 2000, he believes that symptoms of excessive thirst and urination beginning in 1993, along with elevated cholesterol, are related to his current diagnosis. As the examiner failed to address such contentions, the Board finds the July 2012 examination report inadequate and requests that the claims file be forwarded to a physician with appropriate expertise for a medical opinion. The Board similarly concludes that further opinion is needed regarding the etiology of the Veteran's currently diagnosed neck disorders. Review of the June 2012 VA orthopedic examination report shows that the examiner concluded the Veteran's cervical spondylosis, degenerative disc disease, and spinal stenosis are less likely related to service because service treatment records failed to document any evaluation or treatment of neck pain. The Veteran, however, has asserted neck pain since a December 1985 head trauma when he was hit in the head with a door on the flight line. He is competent to report such symptoms and the examiner should, at a minimum, discuss the significance of the in-service head trauma as regards his current neck disorders. Additionally, the examiner must address the Veteran's allegations that his neck disorder may also be secondarily-related to his service-connected traumatic brain injury and/or lower back disability as was specifically requested by the Board in its May 2012 remand. Prior to obtaining any medical opinions, to ensure that all due process requirements are met, and that the record is complete, the RO/AMC should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Such action should include obtaining any outstanding VA treatment records dated since May 2012 should be obtained from the appropriate facilities, including the VA Medical Center (VAMC) in Dallas, Texas. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any treatment records that may be outstanding from all periods of the Veteran's service, including service in the Air Force Reserves. Specifically request records from his prior Reserve Units, as outlined in the June 2007 substantive appeal (or the May 2012 Board remand). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All attempts to obtain this information should be documented in the claims file. If these records are unavailable, this should also be documented in the claims file. 2. Request all outstanding, relevant treatment records from the Dallas VAMC dated since May 2012. All records obtained should be associated with the claims file. The Veteran and his representative are to be notified of unsuccessful efforts. All attempts to procure records should be documented in the file. If records identified cannot be obtained, a notation to that effect should be inserted in the file. 3. Following completion of the above development, forward the Veteran's claims file to an appropriately-trained physician for an opinion regarding whether his current diabetes mellitus is related to active duty service or a period of ACDUTRA. The claims file including a copy of this remand must be made available to, and be reviewed by, the examiner. The physician should additionally review relevant medical records found in the CAPRI system and/or the Veteran's Virtual VA folder. The physician should indicate such review in the examination report or in an addendum. Following his/her review, the physician must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current diabetes mellitus had its onset in service or within one year of service separation, or is otherwise related to a disease or injury in active duty service or a period of ACDUTRA. In rendering the requested opinion, the physician should consider the Veteran's reports that he experienced symptoms of excessive thirst and urination beginning in 1993, along with elevated cholesterol. The examiner should provide a rationale for any opinion. 4. Following completion of the above development, forward the Veteran's claims file to the examiner who conducted the June 2012 VA orthopedic examination for an addendum opinion regarding currently diagnosed neck disorders. The claims file including a copy of this remand must be made available to, and be reviewed by, the examiner. The examiner should additionally review relevant medical records found in the CAPRI system and/or the Veteran's Virtual VA folder. The examiner should indicate such review in the examination report or in an addendum. Following review of the claims file, to include any records added since the June 2012 examination, the examiner must provide opinions to the following questions. The examiner should provide a rationale for any opinion. (a) Whether it is at least as likely as not (50 percent probability or more) that any current neck disorder (diagnosed as cervical spondylosis, degenerative disc disease, and stenosis) is related to active duty or any period of ACDUTRA. In rendering this opinion, the examiner should consider the Veteran's reports regarding experiencing a whiplash-type injury when he was hit in the head with a door on the flight line in December 1985. (b) Whether it is at least as likely as not (50 percent probability or more) that any current neck disorder (diagnosed as cervical spondylosis, degenerative disc disease, and stenosis) is secondary to or aggravated (made permanently worse beyond its natural progression) by his service-connected lower back disability or traumatic brain injury (with post-concussion headaches). If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, considering earlier medical evidence of record as a point of comparison, and also considering the Veteran's statements as to current and past symptoms. 5. Thereafter, the AMC/RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented his or her consideration of Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 6. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issues on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ CHERYL L. MASON 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).