Citation Nr: 1319074 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-48 238 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1996 to April 1999. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 decision by the RO which denied, in part, the benefits sought on appeal. A notice of disagreement (NOD) was received in June 2009, a statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (VA Form 9) in December 2009. In January 2010, the Veteran requested a Board video-conference hearing. In December 2010, he requested, instead, an in- person-hearing at the RO. The requested hearing was scheduled for March 2011; however, the Veteran failed to report for the hearing. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be undertaken prior to appellate review. The Veteran contends that he had some back pain in service and believes that it was the initial onset of his current low back disability. When examined by VA in April 2009, the Veteran reported that he had no major back problems until six months after service when he bent down to pick up a piece of paper and his back went out. He said that x-ray studies taken by a local chiropractor at that time showed two bulging discs, and that the chiropractor told him that this was probably the cause of his back pain in service. The April 2009 VA examiner rendered an opinion there is no causal relationship between the current diagnosis of the lumbar spine-mild degenerative joint disease-and the Veteran's military service. However, in January 2010, the Veteran advised the RO that he had an MRI of his spine at the Huntington VA Medical Center (VAMC) in December 2009, and requested that the study be obtained for his current appeal. Although the RO subsequently obtained a number of records from the Huntington VAMC pertaining to treatment received from January to October 2010, the MRI report was not included in those records. As the VA MRI report may be pertinent to the Veteran's claim, and is deemed constructively of record (e.g., See Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), it must be obtain and associated with the claims file. For the sake of completeness, the RO should also obtain from the Huntington VAMC all outstanding records of evaluation and/or treatment dated since October 2010. Also, the Veteran did not advise the RO of the outstanding private chiropractic records when he was asked to provide the names and addresses of all healthcare providers who treated him for any back problems in March 2009. Therefore, on remand, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, outstanding private chiropractic records mentioned during the April 2009 hearing, as well from any other private treatment provider(s). The Board points out that, because there remain pertinent, outstanding records, the record still does not include a medical opinion based on consideration of all relevant evidence. Therefore, once the RO has obtained additional, pertinent treatment records, the Veteran's claims file should be forwarded to April 2009 VA examiner for an addendum opinion based upon full consideration of all pertinent evidence. The RO should only arrange for the Veteran to undergo examination if the April 2009 examiner is not available, or if another examination of the Veteran is deemed warranted. The Veteran is hereby advised that failure to report to any examination scheduled in connection with the claim for service connection for lumbar spine disability, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the RO's last adjudication of the claim.-to include any treatment records since October 2010, (date of the most recent reports of record) that have not been considered by the RO. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Huntington VAMC a copy of a December 2009 MRI, as well as any outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since October 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private chiropractic records mentioned during the April 2009 examination, as well from any other private treatment provider(s). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time period for the Veteran's response has expired, the RO should forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the April 2009 VA examiner for an addendum opinion. The examiner should again review the claims file, to include the prior examination report and any additional records obtained by this remand. The examiner should provide an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any currently identified low back disability had its onset in or is otherwise medically related to service. In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's documented medical history reflected both in- and post-service treatment records, along with the Veteran's lay assertions. If the April 2009 VA examiner is not available, or another examination of the Veteran is deemed warranted, arrange for the Veteran to undergo another examination to obtain an opinion responsive to the question posed, and comments noted, above. Under such circumstances, the entire claims file, to include a complete copy of this REMAND (and copies of any pertinent electronic (Virtual VA) records, if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. The examiner should set forth all examination findings (if any), along with complete rationale for the conclusions reached in a printed (typewritten) report. 4. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for a low back disability in light of all pertinent evidence (to particularly include all that added to the record (paper and electronic files) since the RO's last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).