Citation Nr: 1318884 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-24 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for back disorder. 2. Entitlement to service connection for a neck disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active service from September 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Winston-Salem, North Carolina. In a June 2007 rating decision, the RO denied service connection for back a disorder. A notice of disagreement was filed in August 2007, a Statement of the Case was issued in July 2008, and a substantive appeal was received in August 2008. The Veteran testified at a RO hearing in November 2009; the transcript is of record. In an April 2011 rating decision, the RO denied service connection for neck disorder, characterized as a pinched nerve. A notice of disagreement was filed in July 2011, a Statement of the Case was issued in May 2012, and a substantive appeal was received in June 2012. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. In considering this appeal, the Board has reviewed the documents in such file in addition to those in the paper claims file. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Under VA regulations, if VA receives or associates with the claims file relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims file when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c) (2012). This regulation contemplates official service department records which presumably have been misplaced and have then been located and forwarded to VA. Id. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. See id. In this case, the Veteran's prior claim of service connection for a back disorder was denied in a February 1998 decision. The Veteran did not file a notice of disagreement and no new and material evidence was received within the one year period after issuance of the decision. Thus, the decision became final. 38 U.S.C.A. § 7105 (West 2002). In April 2006, the Veteran filed a claim to reopen entitlement to service connection for back disorder, and in an August 2006 rating decision the RO determined that new and material evidence had not been received to reopen the claim. The Veteran did not file a notice of disagreement but filed another claim to reopen in February 2007. In a June 2007 rating decision, the RO reopened the claim but denied it on the merits. In August 2007, the Veteran filed a notice of disagreement with the denial. In July 2008, additional service treatment records were associated with the claims file. These service records were not previously considered in February 1998. Given the submission of the new service records, the claim must be reconsidered without regard to the previous final denials. 38 C.F.R. § 3.156(c). The Veteran asserts that he injured his back and sustained a pinched nerve in his neck during a training exercise in basic training. Review of service treatment records reflects no treatment or diagnosis for a back or neck disorder. In February 1972, the Veteran was hospitalized with a history of recurrent Achilles tendonitis and flat feet. He was admitted for Medical Board processing. It was determined that he was not physically qualified for enlistment or induction into service due to flat feet and limitation of motion of both ankles. The diagnoses were bilateral pes planus and limitation of motion, lack of dorsiflexion, both ankles, secondary to tight heel cords. A February 1972 Report of Medical Examination reveals that the Veteran's 'spine, other musculoskeletal' was clinically evaluated as normal. In June 1977, he attempted to re-enlist, and his spine was clinically evaluated as normal. However, he was deemed not qualified due to an abdominal wound. In light of the Veteran's assertions of injuring his back and neck during an in-service incident and the post-service medical evidence of low back strain, the Board finds that the Veteran should be afforded a VA examination to assess the nature and etiology of his claimed back and neck disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). In light of these matters being remanded, associate with the claims file or Virtual VA updated VA treatment records from the Durham VAMC from April 5, 2011. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall associate with the claims file or Virtual VA updated treatment records from the Durham VAMC for the period from April 5, 2011. If such efforts prove unsuccessful, documentation to that effect should be added to the claims file. 2. The RO/AMC shall schedule the Veteran for a VA examination with a physician with appropriate expertise pertaining to his claimed back and neck disorders. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. All appropriate testing should be performed. The examiner is requested to respond to the following: (a) Please identify all disabilities associated with the back and neck; (b) For any disabilities of the back identified, the examiner should indicate (i) whether it is at least as likely as not that any such disability had its clinical onset during the Veteran's period of active service; (ii) whether arthritis of the back had manifested within one year following separation from service; and (iii) whether a current back disorder is otherwise related to his period of active service, to include the claimed injury; (c) For any disabilities of the neck identified, the examiner should indicate (i) whether it is at least as likely as not that any such disability had its clinical onset during the Veteran's period of active service; (ii) whether arthritis of the neck had manifested within one year following separation from service; and (iii) whether a current neck disorder is otherwise related to his period of active service, to include the claimed injury. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a back or neck disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner must clearly and specifically so specify in the examination report, with an explanation as to why this is so. All opinions and conclusions expressed must be supported by a complete rationale. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 4. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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).