Citation Nr: 1318766 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 12-23 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a disability of the back, to include as due to a pilonidal sinus (cyst). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1951 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying service connection for chronic low back pain. The Veteran testified at a video conference hearing before the undersigned in March 2013. A written transcript of this hearing has been prepared and incorporated into the evidence of record. A review of the Virtual VA paperless claims processing system only reveals documents that are duplicative of those already in the Veteran's physical claims file. The Veteran's claim was previously treated as one of entitlement to service connection for low back pain. However, during his March 2013 hearing, the Veteran clarified that he was in fact seeking service connection for the residuals of a pilonidal cyst of the low back. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Court extended the holding of Clemons to include disabilities outside of psychiatric disorders. In compliance with this case law, the Board considers the Veteran's claim of service connection for low back pain as one that encompasses any residuals of a pilonidal cyst. The issue has thus been restated on the first page. 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 Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In his original claim of May 2010, the Veteran asserted that he suffered from chronic low back pain and that he underwent a surgical procedure of the low back shortly after his separation from military service. A claim of chronic low back pain was subsequently denied in an August 2010 rating decision. It was noted that the Veteran's spine was normal at the time of separation and that there was no evidence linking his current back disability to military service. At the outset, the Board notes that the Veteran's service medical and personnel records appear to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973, and have not been located (aside from the Veteran's August 1955 discharge examination). Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A review of the history of the Veteran's claim reflects some confusion. The Veteran clarified during his March 2013 hearing that the surgical procedure he was referring to was to treat a pilonidal sinus or cyst. Despite this claim being fire-related, the in-service existence of this condition appears to be confirmed. The Veteran's August 1955 discharge examination clearly notes a pilonidal sinus. Moreover, a record of hospitalization (VA Form 10-2593) shows the Veteran underwent an excision of a pilonidal cyst in December 1955 at the VA hospital in Montgomery, Alabama. Also, the Veteran has submitted numerous letters from his fiancé addressed to him while he was in the hospital in December 1955 - some 3 months after his discharge. At the hearing, the Veteran also indicated that he believed other disorders of his back may have been caused by the cyst. This condition has not been considered by the AOJ. As such, a remand is required in order to avoid prejudice to the Veteran, as the claim for entitlement to service connection for any residual of a pilonidal cyst has not yet been considered by the RO. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993) (when the Board addresses a question that has not been addressed by the agency of original jurisdiction (AOJ), the Board must consider whether the Veteran has been prejudiced thereby). As the RO has not yet adjudicated whether the Veteran's pilonidal cyst, encompassed within his claim of service connection for low back pain, is related to his active duty service, the RO should consider the evidence of record and readjudicate the claim in light of Clemons and Brokowski, in order to avoid prejudice to the Veteran. Id. The record also reflects that in June 2010 the RO requested VA treatment records from 1955 to date from the Montgomery VAMC. There is a June 2010 response from the Tuskegee VAMC in which records were forwarded and an indication that other medical records were located at the Tuscaloosa VAMC (transferred on December 31, 1996). A Report of General Information in June 2012 noted that Tuscaloosa VAMC indicated that records on the Veteran were transferred to the Montgomery VAMC in 2010. In light of the foregoing, the Board finds that the Veteran's records from the Montgomery VAMC should be requested. Additionally, the Veteran should be scheduled for a VA examination. The Veteran explained during his hearing that the residuals of a pilonidal cyst are in fact what he is seeking service connection for, and, that he believes the pilonidal cyst resulted in his subsequent spinal disabilities. At present, the record does not contain any evidence demonstrating whether the Veteran suffers from any current residuals related to his in-service pilonidal cyst, to include a spinal condition. While there is certainly evidence of a currently diagnosed spinal condition, the evidence of record fails to link this to a pilonidal cyst. The Veteran should be scheduled for a VA examination to determine whether he suffers from any current residuals of a pilonidal cyst. The examiner should also opine as to whether it is at least as likely as not that the Veteran's current spine disability manifested as a result of the in-service pilonidal cyst. 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 any records from the Montgomery, Alabama VAMC pertaining to any treatment the Veteran received for his back, including a pilonidal cyst from 1955 to date. 2. The Veteran should be scheduled for a VA examination before an appropriate examiner to determine whether he suffers from any disability of the back that manifested during, or as a result of, active military service. His claims file and a copy of this remand must be made available for review. The examiner should perform all necessary tests and studies, and address the following: (a) Does the Veteran suffer from any current residual of a pilonidal cyst? (b) Regardless of whether a residual of a pilonidal cyst is discovered, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran suffers from any current disability of the back that was (i) caused by the in-service pilonidal cyst (a pilonidal sinus is clearly noted in the Veteran's August 1955 discharge examination and there is a record of hospitalization for excision of a pilonidal cyst in December 1955) or (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by the in-service pilonidal cyst. A complete rationale must be provided for all opinions offered and any lay statements provided by the Veteran in support of his claim must be fully considered and discussed. 3. The RO/AMC should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished. If all questions posed are not sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry. 4. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the claim remains denied, the RO/AMC should provide the appellant a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH Acting 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).