Citation Nr: 1322722 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-33 962 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2007 to January 2008. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO, inter alia, denied service connection for low back pain. In January 2009, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2010. On the Veteran's VA Form 9, he elected to have a Board hearing in Washington, DC. In October 2010, the Veteran was informed by the RO that the waiting period for a Board video-conference hearing was shorter, and he opted to have such a hearing instead. The hearing was held in November 2010 before the undersigned; a transcript of the hearing is of record. The Veteran also had a hearing before a Decision Review Officer at the RO in June 2009. A transcript of that hearing is also of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file that has been reviewed in reviewing the Veteran's claim. For the 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 when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. The Veteran seeks service connection for a lumbar spine disability, which he claims is secondary to his service-connected left tibial plateau stress fracture. In June 2009 and November 2010, the Veteran offered testimony describing the onset of his low back pain during service, stating that he fell twice during service while wearing a full leg cast. In February 2010, the Veteran underwent a VA examination to assess the etiology of his lumbar spine disability. The examiner recounted the Veteran's medical history, including that the Veteran did not have a history of any falls. The diagnosis was L4-5 and L5-S1 disc protrusions. The Veteran relayed to the examiner that his back began to hurt while he was on crutches and recovering from a proximal tibial fracture. The examiner opined negatively on any relationship between the Veteran's lumbar spine disability and service, noting that the Veteran's recovery from his tibial fracture was "a time of probably relative inactivity for him...certainly there was no event to connect to the MRI." The examiner went on to note that there was no in-service event, treatment or complaint regarding the Veteran's lower back, and that this was a natural progression of the Veteran's low back, regardless of his military service. Following this examination, the Veteran submitted additional service treatment records; these record document treatment for low back pain, and that he was given a profile for his backache in October 2007. He has also submitted a letter from his wife, written to him while he was in service and postmarked May 2007, which inquires about his low back pain. Given this additional evidence, an addendum opinion from the February 2010 examiner should be obtained which takes into account the Veteran's in-service complaints of low back pain, and his reports that he fell twice during service, and that he has more or less had continuous back problems since then. . Moreover, as such evidence raises the theory of entitlement to service connection on a direct basis, the examiner should also offer an opinion on such as well. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Prior to obtaining the addendum opinion, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The RO should obtain from all pertinent VA facility(ies)-to include the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania, (reflected in the record) all outstanding pertinent records of evaluation and/or treatment of the Veteran. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, notifying him 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). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist 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 VCAA compliance. 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 the claim should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby is REMANDED for the following action: 1. Obtain from all pertinent VA facility(ies)-to include the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania-all outstanding ,pertinent records of evaluation and/or treatment of the Veteran since his discharge from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. 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 claim on appeal that is not currently of record. 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 any additional records have been associated with the claims file, return to the entire claims file, to include a complete copy of the REMAND to the February 2010 VA examiner, Dr. C.G., for an addendum opinion. The examiner should provide 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 Veteran's lumbar spine disability had its onset during, or is otherwise medically related to service, to include as due to his service-connected left tibial plateau stress fracture. In rendering each requested opinion, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's service treatment records showing complaints of low back pain, and the Veteran's assertions, including his report of two in-service falls. The examiner should set forth the 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 actions, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) 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 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).