Citation Nr: 1322301 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-27 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for leg and hip disabilities, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 RO decision, which denied an application to reopen a previously denied claim for service connection for a lumbar spine disability and denied a claim for service connection for leg and hip disabilities claimed as secondary to a back disability. In July 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Atlanta, Georgia RO. A transcript of that proceeding has been associated with the claims file. These issues were remanded by the Board for further development in November 2010. Thereafter, in January 2012, the Board denied the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the parties (the Secretary of VA and the Veteran) filed a Joint Motion for Remand with the Court, which was granted by Order of the Court in August 2012, vacating the Board's January 2012 decision and remanding the case for compliance with the terms of the joint motion. In March 2013 the Board remanded the Veteran's claims for additional development. 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 The Veteran seeks entitlement to service connection for a lumbar spine disability and entitlement to service connection for leg and hip disabilities, to include as secondary to a back disability. In March 2013 the Board noted that the Veteran receives regular treatment from VA and remanded the Veteran's claims for attempts to be made to obtain and associate with the claims file all VA treatment records regarding the Veteran dated subsequent to June 2011, including those from the Atlanta VA Medical Center and the East Point Community Based Outpatient Clinic (CBOC). Review of the claims file reveals that treatment records dated through November 2011 have been obtained and associated. A notation in claims file indicates that VA treatment records dated November 2011 to April 2013 were received in May 2013. In addition, the supplemental statement of the case, issued in May 2013, indicates that VA treatment records dated from June 2011 to April 2013 were of record. However, review of the claims file does not reveal any VA treatment records dated subsequent to November 2011. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, additional attempts must be made to obtain and associate with the claims file VA treatment records regarding the Veteran dated since November 2011, including records from the Atlanta VA Medical Center and the East Point Community Based Outpatient Clinic (CBOC). Pursuant to the Board's March 2013 remand, the Veteran was afforded VA medical examinations regarding the etiology of his lumbar spine disability and his leg and hip disabilities in April 2013. After examination the examiner rendered the opinion that the claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that the Veteran did not complain of or was seen for a back, hip or leg problem in service. The Veteran was noted to have degenerative joint disease but that it started in 1992 or 1993 when he was first seen for it at Piedmont Hospital in May 1994. At that time he had a history of two weeks onset of back pain. It was noted that the Veteran was a brick layer at the time, which is a strenuous occupation. The examiner continued to indicate that the Veteran has a diagnosis of bilateral avascular necrosis of the femoral heads and that this is not a condition caused or associated with back pain and that there is no evidence of this problem in service. The Veteran was noted to have normal knees and legs bilaterally. Although the examiner provides a rationale for the opinion rendered, the examiner appears to rely upon a lack of complaint, diagnosis, and treatment in service in rendering the opinion. As such, the Board notes that the opinion rendered is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, the Board notes that VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2012); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, as the opinion rendered is inadequate and as the remand requests the association with the claims file of additional VA treatment records the claims file must be returned to the examiner who performed the April 2013 examinations for preparation of an addendum taking into consideration all new evidence associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain all VA medical records pertaining to the Veteran dated since November 2011, including records from the Atlanta VA Medical Center and the East Point CBOC. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Thereafter, forward the file to the examiner who performed the April 2013 VA medical examinations (if available, otherwise to a new examiner), for preparation of an addendum that takes into account all relevant evidence of record. The examiner should comment on the Veteran's report regarding the onset and continuity of symptomatology and opine as to whether it is at least as likely as not that any lumbar spine disability and leg and hip disabilities were incurred during military service or are due to an event or injury during military service. In addition, the examiner should opine as to whether it is at least as likely as not that any leg and hip disabilities are proximately due to or permanently aggravated by a lumbar spine disability. In rendering this opinion the examiner should discuss whether any leg and hip disabilities represent distinct disabilities or manifestations of a lumbar spine disability. A rationale for any opinion advanced should be provided. 3. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If the benefits sought are not granted, issue a supplemental statement of the case to the Veteran and his representative and afforded an opportunity to respond, before the case record is returned to the Board for further review. 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). 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). _________________________________________________ ROBERT E. SULLIVAN 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).