Citation Nr: 1318955 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-19 592A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from August 1982 to August 1982 and from September 1984 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). The appeal is remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND The appellant's claim was remanded in November 2011 for development of the evidence, to include service treatment records and VA examination. For the reasons discussed below, the Board finds that the November 2011 remand directives have not been substantially complied with. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the RO was instructed to submit a request to the appropriate agency to obtain the appellant's National Guard personnel and treatment records. Both personnel and treatment records from the appellant's period of service in 1984 are associated with the claims file. However, with regard to the 1982 records, the record is not yet fully developed. Following the Board's remand, the AMC mailed the State Adjutant General Office (National Guard) in Springfield, Illinois, a letter requesting the appellant's military personnel and treatment records, to specifically include physical examinations, service treatment records, line of duty determination(s), and verification of all periods of service. In response, the Illinois Army and Air National Guard provided a letter to the AMC in December 2011. This letter confirmed that the Veteran had "Dates of National Guard Duty" from "25/February/1982 - 24/December/1982." No further information was provided other than instruction for the AMC to contact the St. Louis Records Management Office for the service treatment records related to this period of service. In November 2011, the AMC utilized VA's Personnel Information Exchange System (PIES) to request service treatment records. The response received indicated that a prior response furnished to Milwaukee, Wisconsin, in September 1986 included the service treatment records. The Board has reviewed the only other service records envelope in the claims file and it contains only service treatment records from the 1984 period of service. In the July 2012 supplemental statement of the case, the AMC merely made note that the PIES response indicated that service treatment records were sent previously. The AMC did not make any further attempt to locate the missing service treatment records, and actually failed to indicate that any such records were missing. Rather, the supplemental statement of the case simply states that the records received in 1986 "are already of record." VA has not met its duty to assist with regard to the appellant's service treatment records related to his 1982 period of service. No follow-up attempts occurred, and no requisite notification under 38 C.F.R. § 3.159(e) was provided. Thus, this claim must be remanded. Further, the Board's prior remand required the AMC to schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any low back disorder found. A VA healthcare system record was added to the claims file, which indicates that the appellant failed to report to a VA spine examination. It is unclear on which date this examination was scheduled. Moreover, the AMC ignored the Board's instruction in its remand directive to, if the appellant does not appear for any scheduled examination, obtain documentation showing that notice scheduling the examination was sent to his last known address, and associate copies of all notice documents with the claims file. The Board further instructed the AMC to indicate whether any notice was returned as undeliverable. No such action was completed by the AMC. Again, RO compliance with Board remand directives is not optional or discretionary. See Stegall, 11 Vet. App. at 271. Accordingly, the case is remanded for the following action: 1. The AMC must submit a request to the appropriate agency to obtain the appellant's National Guard treatment records pertaining to his service period in 1982. In particular, records related to his service with the Illinois National Guard between February 1982 and December 1982, to specifically include treatment during ACDUTRA from August 2, 1982, to August 18, 1982. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain the identified records, the AMC is unable to secure same, the AMC must notify the appellant and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim, and (d) that he is ultimately responsible for obtaining and submitting these records for consideration. The appellant and his representative must then be given an opportunity to respond. 2. The AMC must associate with the claims file all notice letters related to any VA examination scheduled following the Board's November 2011 Remand. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. If the AMC is unable to complete remand directive number 2, the appellant must be afforded another opportunity to attend a VA examination related to this claim. In this case, the appellant must be afforded a VA orthopedic examination to determine the nature and etiology of any low back disorder found. All tests or studies necessary to make this determination must be ordered. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record, and with consideration of the service and post-service treatment records, as well as of the appellant's statements, the examiner must provide an opinion as to whether any low back disorder found is related to either of his periods of ACDUTRA. If a low back disorder is found to have preexisted military service, the examiner must state if either of the appellant's periods of ACDUTRA aggravated the preexisting disorder. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. A complete rationale for all opinions must be provided. The report must be typed. 4. If a new examination is scheduled, the AMC must notify the appellant that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the appellant does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the appellant of any scheduled VA examination must be placed in the appellant's claims file. 5. The AMC must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the AMC must implement corrective procedures at once. 6. The AMC must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the appellant and his representative must be provided a supplemental statement of the case. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).