Citation Nr: 1318452 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-27 159 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971, and from January 1984 to July 1993, including combat service; and his decorations include the Purple Heart and the Combat Infantryman Badge. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision that, in pertinent part, denied service connection for a low back disability, to include as a residual of poliomyelitis. The Veteran timely appealed. The record reflects that the Veteran failed to appear for a hearing scheduled in June 2007. Under these circumstances, the Veteran's request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). In July 2010, the Board remanded the matter for additional development. The issue of service connection for chronic obstructive pulmonary disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Records In the July 2010 remand, the Board essentially found that the Veteran identified outstanding VA treatment records which may be pertinent to the claim on appeal. In November 2005, the Veteran stated that he was "treated for these conditions since 1993" at the VA medical center in Lake City and in Gainesville, Florida. The conditions then referenced by the Veteran included malaria, hypertension, and back; and the year 1993 is the same year that the Veteran was discharged from active service. The Veteran's claims file at that time only contained treatment records, pertinent to the appeal, dated from January 2000 forward. A review of the record reflects that all outstanding pertinent records of evaluation and treatment from the VA facilities, since the Veteran's discharge from active service in 1993, were requested by the AMC. However, there is no indication in the claims file that any outstanding VA treatment records, for the identified period from 1993 to 1999, have been found and/or associated with the Veteran's paper claims file or his electronic file, and more importantly, there is no documentation of a negative response from the specific VA facilities referenced by the Veteran. The Veteran's paper claims file currently only contains duplicate copies of treatment records dated from 2000 forward. Moreover, in the subsequent December 2011 SSOC issued by the AMC, there was not indication of any response, negative or otherwise, to their request for the 1993 to 2000 VA treatment records that had been identified by the Veteran. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO or AMC should once again attempt to obtain any records of treatment pertaining to the Veteran's low back disability from VA facilities in Lake City and Gainesville, Florida, for the period from 1993 through 1999, and the ultimate success or failure of that attempt should be documented. In addition, as it appears that there are additional medical records that are outstanding, the RO or AMC should ask the Veteran, once again, to identify or provide any additional treatment records (not already of record) pertaining to his low back disability, to include those from a hospital in Liberal, Kansas (1985-1987); from a chiropractor in Kansas (1985-1987); from a civilian hospital in Texas; and from any other source. The Veteran should also provide necessary releases, so VA could request relevant records on his behalf. Moreover, in his original claim submitted in September 2005, the Veteran indicated that his low back disability began in active service in January 1987; and that he was treated at the time at Ft. Riley, Kansas. In August 2006, the Veteran also indicated that he was treated for his low back disability while stationed in Manheim, Germany. During a VA examination in August 2010, the Veteran reported that he injured his back while on active duty in 1985 or 1986, when he fell off of a semi-trailer. He reported being evaluated at the time, and was taken to a hospital in Liberal, Kansas. He reportedly was given pain pills, and was sent for chiropractic therapy for a few weeks. The Veteran also provided the VA examiner with the name and contact information of a former servicemember who can corroborate the Veteran's claimed in-service back injury. The Board notes that service treatment records do not reflect any findings or complaints of back pain or injury; nor has the Veteran claimed that the in-service back injury occurred during combat. The claims file does not contain any inpatient or outpatient clinical records of treatment for low back pain while the Veteran was stationed in Manheim, Germany. Under these circumstances, the Veteran's personnel records for his second period of enlistment-including records of assignment, limited profiles, and dates of foreign service-could be relevant to the Veteran's claim for service connection. The Veteran should also be invited to submit any other evidence, to include buddy statements, in support of his claim. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If additional evidence in support of the Veteran's claimed in-service back injury is received, further clarification from the August 2010 examiner (or a suitable substitute) is needed as to the nature and etiology of the Veteran's current low back disabilities. VA is obliged to assist a Veteran to obtain evidence pertinent to his claims. See 38 U.S.C.A. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should obtain from the VA facilities in Lake City and Gainesville, Florida, all outstanding pertinent records of evaluation and/or treatment for the Veteran's low back disability, for the period from 1993 through 1999. All records and/or responses received should be associated with the Veteran's paper claims file or his electronic file. All attempts and the success or failure to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO or AMC must notify the Veteran and his representative and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After obtaining any necessary authorization from the Veteran, please request treatment records pertaining to his low back disability from a hospital in Liberal, Kansas (1985-1987); from a chiropractor in Kansas (1985-1987); from a civilian hospital in Texas; and from any other source identified by the Veteran. Please associate all records with the Veteran's paper claims folder or his electronic file. If, after making reasonable efforts to obtain named records the RO or AMC is unable to secure same, the RO or AMC must notify the Veteran and his representative and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. Undertake appropriate action to obtain the Veteran's service personnel records-including records of assignment, limited profiles, and dates of foreign service-for the Veteran's secondary enlistment period from January 1984 to July 1993. Send a copy of the Veteran's separation document, if available, with the request. Please associate all records with the Veteran's paper claims folder or his electronic file. 4. Take appropriate action to obtain the Veteran's inpatient or outpatient clinical records for treatment of low back pain in active service while stationed at Manheim, Germany, for dates shown in the Veteran's assignment records. All records and/or responses received should be associated with the Veteran's paper claims file or his electronic file. 5. Invite the Veteran to submit any evidence, to include buddy statements, in support of his claim. 6. Thereafter, if additional evidence pertinent to the Veteran's claimed in-service back injury is received, return the claims file to the August 2010 examiner (or, if that examiner is unavailable, a suitable substitute) to provide an addendum opinion as to whether it is at least as likely as not that the onset of the Veteran's current low back disabilities was in service. The physician should support the opinion by discussing medical principles as applied to the specific evidence in the Veteran's case. The claims folder should be made available to the physician for review, and the physician should acknowledge such review in the addendum. If deemed necessary, the Veteran may be scheduled for further examination. If the physician determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the physician's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the physician, and the addendum report should note review of the file. 7. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. The Veteran and his representative have 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). _________________________________________________ MICHAEL A. PAPPAS 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).