Citation Nr: 1320247 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-19 582 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from January 1974 to May 1974. He served on active duty from October 1991 to December 1991, and from October 1992 to April 1993. He also served as a member of the New Jersey Army National Guard, to include additional periods of ACDUTRA and inactive duty for training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arises from an August 2008 rating decision in which the RO denied service connection for back and heart disabilities. In January 2009, the appellant filed a notice of disagreement (NOD) as to this denial. The RO issued a statement of the case (SOC) in May 2009, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in June 2009. The RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claims in April 2013. In December 2010, the Veteran testified during a hearing before a Decision Review Officer at the RO; a transcript of that hearing has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. Notably, VA treatment records dated through April 2013 have been associated with the Veteran's electronic claims file. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on this appeal is warranted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Additionally, the Board notes that with respect to the Veteran's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2012). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence 'indicates' that there 'may' be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Relevant to the Veteran's low back disability claim, in this case, there is credible lay and medical evidence of a jeep accident during a period of INACDUTRA. Indeed, while the Veteran was on INACDUTRA on July 15, 1985, he was pinned between a table and truck when another individual lost control of the jeep in the motor pool and it sped toward the Veteran. The Veteran was treated for a hip and pelvis injury; however he has reported in statements as well as in testimony that he also had back pain as a result of that accident. The Veteran has indicated that his back pain has continued since that time. There is medical evidence of the post-service onset of symptoms and diagnosis of a lumbar spine disorder. Relevant to the Veteran's heart disability claim, an April 1993 service treatment record documents that the Veteran was seen in December 1992 for complaints of chest pain, shortness of breath, as well as dizziness. He was thought to possibly have heart disease. Post-service treatment records document symptoms and diagnosis of heart disease. There is the suggestion by the Veteran that his back disorder was caused by trauma experienced during a period of INACDUTRA although no injury of the back was noted by military examiners after the accident. Additionally, a service treatment record documents possible heart disease during active duty service. Therefore, the Board concludes that requirements for VA examinations are met, and that comprehensive and detailed examinations and opinions are needed to decide these claims. Hence, the RO should arrange for the Veteran to undergo VA orthopedic and cardiac examinations, by appropriate physicians, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s) for service connection (as the original claim(s) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (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 appellant fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give him another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the appellant 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 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). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. 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; 38 C.F.R. § 3.159. 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 and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating the claims, the RO should consider all evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims for service connection for back and heart conditions that is not currently of record. The RO's letter should 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). 2. 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 of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current back disability(ies). Then, with respect to any diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, specifically injury incurred or aggravated during the July 15, 1985 period of INACDUTRA. If the examiner is unable to provide the requested opinion with respect to the low back disability without resort to speculation, the examiner should clearly so state and explain why. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. Regarding the Veteran's heart condition, arrange for the Veteran to undergo VA cardiac examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current heart disability(ies). Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, specifically noted in-service chest pain, shortness of breath, and dizziness. If the examiner is unable to provide the requested opinion with respect to the heart disability without resort to speculation, the examiner should clearly so state and explain why. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 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 action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence and legal authority. 7. If any 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 REMAND 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).