Citation Nr: 1323359 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-24 833 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for neck condition/pain. 2. Entitlement to service connection for a back condition/pain. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active duty service from May 1970 to December 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that two separate statements of the case were issued in October 2008 regarding denial of waiver of recovery of pension debts. However, as the claims file does not reflect that the Veteran submitted a substantive appeal with regard to these issues, these issues are not currently on appeal before the Board. In a June 2009 statement, the Veteran requested a hearing before a hearing officer at the VA RO in Roanoke, Virginia. The RO noted in a July 2013 deferred rating decision that the Veteran's representative had indicated that the Veteran did not want a Decision Review Officer (DRO) hearing or a Board hearing. In the June 2013 Statement of Accredited Representation in Appealed Case, the representative noted that the Veteran did not want a Board hearing, gave no indication that the Veteran wished to be scheduled for a DRO hearing, and requested a decision be rendered based on a compassionate review of all evidence of record. As such, the Board finds no indication that the Veteran wishes to be afforded a DRO hearing and will proceed to evaluate the claim as done below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. Records The claims file contains a September 1994 decision from Social Security Administration (SSA), which determined the Veteran to have been disabled under the Social Security Act beginning on October 14, 1993. This decision noted that on and subsequent to October 14, 1993, the Veteran experienced a severe mental impairment: major affective disorder, anxiety, posttraumatic stress disorder (PTSD), and alcohol abuse. The Veteran's SSA disability benefits were ended, effective January 1, 1997. Evidence in the Veteran's Virtual VA paperless claims file reflects that the Veteran was subsequently awarded SSA disability benefits, effective February 15, 2007. However, the Veteran indicated in a June 2012 claim that he was not receiving SSA disability benefits. VA has a duty to assist the Veteran in obtaining records in the custody of federal government agencies. As it appears that the Veteran was awarded SSA disability benefits as of February 2007, Board finds that these issues must be remanded in order to obtain all available SSA records relating to disability benefits. Additionally, the Veteran indicated in an August 2007 statement that he was transferred to Fort Belvoir around March of 1971 due to his claimed injuries and was placed on profile. In light of these assertions, the Veteran's personnel records should be obtained and associated with the claims file in an attempt to verify his claims. A copy of his DD-214 Form should be obtained as well, given that one has not yet been associated with the claims file. The Board notes that the claims file contains an Interoffice Memorandum regarding a Formal Finding of Unavailability of Records from Camp Casey Community Hospital from January 1, 1971, to January 31, 1971. However, the Veteran indicated in an April 2009 statement that he received treatment at Camp Casey from December 1, 1970, until January 31, 1971. As such, another search for records from Camp Casey should be conducted for the period of December 1, 1970, to December 31, 1970. Upon remand, all available VA treatment records that have not yet been associated with the claims file must also be obtained. Examinations The Veteran asserts that he was thrown from an armored personnel carrier (APC) when it turned over into a drainage ditch while stationed in Korea around December of 1970. The Veteran contends that he suffered neck and back injuries as a result of this incident and was treated for these conditions at Camp Casey, Korea. He also asserts that he was hospitalized at Fort Lewis twice while trying to obtain clearance to go back to Korea. A review of the Veteran's service treatment records reveals no treatment for a neck or back condition. The Veteran's spine was noted as normal on his October 1969 pre-induction report of medical examination and on his December 1971 separation report of medical examination. However, the Veteran reported recurrent back pain on his December 1971 Report of Medical History. A March 1984 private treatment record reflected that the Veteran fell off a ladder. A CT was taken of his cervical spine, not his lumbar spine, at this time. VA treatment records reflect that the Veteran has chronic back pain and suffered a crush injury in a coal mine accident in 1992. In June 2012, the Veteran underwent a VA examination. Upon examination, the examiner diagnosed the Veteran with chronic lumbar strain spondylosis arthritis with degenerative disc disease and cervical degenerative disc disease. The examiner determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that, after a considerable amount of claims file review, he could not find prior treatment records to support this Veteran's current claim. He pointed out that the RO had not provided documentation of the in-service injury "as required." The examiner focused on the perceived lack of evidence in the service treatment records, as well as the presence of significant post-service back injuries, to find against a nexus. Subsequently, the same examiner provided an addendum to this opinion in August 2012. He noted that the RO requested that he accept the Veteran's account of being thrown from an APC while serving in Korea in 1970, although there is a "lack of or no evidence" collaborating this claim. The examiner noted that he considers the fact that he is obligated to perform his duties as a VA C&P medical examiner to his best abilities, and he therefore cannot in good conscience ignore this lack of evidence. While the Board understands what the examiner has attempted to explain, the examiner misunderstands the legal requirements for establishing service connection, to include the admissibility of lay evidence. The examiner has further misread the service treatment records, which in fact confirm complaints of back pain at separation from service; therefore, there is some evidence of an injury, which the opinions of record do not take into account. In light of the fact that the examiner did not discuss the fact that the Veteran reported recurrent back pain on his December 1971 Report of Medical History, the Board finds the June 2012 and August 2012 VA opinions are inadequate with regard to the Veteran's back claim. Therefore, as the Veteran complained of back pain upon separation from service, the Veteran has been diagnosed with a current back disability, and the June 2012 and August 2012 VA opinions have been determined to be inadequate to adjudicate this claim, the Board finds that the necessity for a new VA examination is shown for the proper assessment of the Veteran's back condition/pain claim. 38 U.S.C.A. § 5103A (West 2002). As such, the Veteran should be scheduled for a VA examination to determine whether he has a current back disability of any kind that was caused or aggravated by his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file. 2. Obtain and associate the Veteran's personnel records with the claims file, to include a copy of his DD-214 Form. 3. Obtain and associate with the claims file all available SSA disability records. 4. Obtain and associate with the claims file all available medical records for the Veteran's alleged treatment at Camp Casey Community Hospital for the period of December 1, 1970, to December 31, 1970. All responses, including negative responses, should be associated with the claims file. If no records are available, a Formal Finding of Unavailability on these records should be obtained, and the Veteran should be informed of such a finding. 5. Forward the Veteran's claims folder to the examiner who conducted the June 2012 VA examination and provided the August 2012 addendum opinion (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested again to review the claims folder in order to render an opinion as to whether it is at least as likely as not (probability of fifty percent or more) that any back disability diagnosed in the medical records had its onset in service or was otherwise caused or aggravated by his active service. Review of the entire file is required, however, attention is invited to: the December 1971 service separation examination, documenting a complaint of recurrent back pain; private medical evidence of injuries in 1984 (fall from scaffolding) and 1992 (coal mine accident); VA opinions dated in June and August 2012. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. The examiner is advised that the Board has found the Veteran's statements as to the in-service injury (specifically a fall from an armored personnel carrier) to be credible in so far as indicating that the injury occurred. That said, the medical question being asked is whether this type of injury at least as likely as not resulted in the currently diagnosed disability. Consideration of intercurrent injuries is also appropriate. 6. Conduct any additional development deemed necessary based on the receipt any new evidence, to include the ordering of VA examinations. 7. Then, readjudicate the claims. If the benefits sought remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).