Citation Nr: 1323615 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-35 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1974 with Reserve service thereafter. This current matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 2008 rating decision in which the North Little Rock, Arkansas, Regional Office (RO) denied the Veteran's attempt to reopen his claim for service connection for a back disorder. In October 2010, the Veteran appeared at the RO and testified at a videoconference hearing conducted by the undersigned Veterans Law Judge sitting in Washington, D.C. A transcript of that hearing has been associated with the claims file. In a January 2011 decision, the Board reopened the claim for service connection for a low back disorder and remanded the underlying service connection issue for additional evidentiary development. The case was remanded again in September 2012 for a supplemental medical opinion. Unfortunately, the December 2012 addendum opinion does not fully comply with the September 2012 remand directives. As such, this claim must be remanded again. The Board notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 file, the Board has determined that further evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for a low back disorder. In this regard, the Board is cognizant of the fact that this claim has been in adjudicative status since 2009 and that it has been remanded twice in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this claim again unless it was essential for a full and fair adjudication. The matter was most recently remanded in September 2012 to, in pertinent part, verify the specific dates of the Veteran's active duty training (ADT) and inactive duty training (IDT) and to procure a supplemental medical opinion. As for the medical opinion, the examiner was asked to determine whether it was at least as likely as not that any low back disorder found was incurred in or aggravated by the Veteran's military service. In answering the question, the examiner was to address the Veteran's history of back surgery in 1982 and low back injury in 1996. The examiner was also directed to address the Veteran's assertions regarding the nature, severity, and frequency of his low back symptoms and to provide the rationale for all opinions expressed. Unfortunately, the December 2012 addendum report failed to adequately address these medical questions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The United States Court of Appeals for Veterans Claims (Court) has concluded that the Board had erred when it adjudicated a claim in which the RO had not conformed to the dictates of the earlier Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, this matter must remanded to cure these defects. In addition, the crux of the Veteran's claim for service connection hinges on whether or not any diagnosed low back disorder is related to an injury occurring in service or during a period of ADT or IDT. To that end, the Board directs the AMC/RO's attention to several key issues that have come to light upon a closer inspection of the record. As noted in the previous Remands, the Veteran contends that he injured his back during a period of active duty Reserve service. At his October 2010 hearing, he testified that he had Reserve service from approximately 1974 to 1999 and that in 1996 while stationed in Panama he tripped over some vines and had to be evacuated to the barracks for 90 days until he could return to the United States. See hearing transcript (Tr.) at page 4. He testified that he had undergone prior low back surgery in the early 1980s and that the 1996 injury aggravated his prior low back problems. See Tr. at page 11. He reported current symptoms of chronic low back pain and tightness in the legs. However, a close review of the claims file shows that elsewhere in the record the Veteran offered a contradictory account of his Reserve service history. For instance, during VA examinations in May 1983 and September 1984, he reported that he was in the Marine Corps from 1972 to 1976 and that he initially injured his back in 1976 (not 1996) when he fell from a cliff while in the Panama Canal Zone. At that time, he noted that he was hospitalized for 30 days, rather than 90 days. See also private clinical records from Triple A Chiropractic Clinic dated from January 2008 to June 2008. These records also show that the Veteran suffered at least two significant intervening injuries to his back as a result of motor vehicle accidents in 1979 and 1981. See also VA examination report dated in June 1992. He later underwent back surgery in 1982. There are few of the Veteran's service records available for review to determine the specific dates of any ADT and IDT and whether he received treatment for, or was diagnosed with a low back disorder during such service. In this regard, the Board notes that the RO initiated multiple requests to obtain these records. See also VA Form 10-7131 dated in October 1981, VA Form 07-3101a dated in August 1982, VA Form 60-3101 February 1983, and VA Form 70-3101-4, dated in October 1995. While the RO was able to secure a May 1972 enlistment medical examination from his period of active duty, the remaining service treatment records are still missing from the record. Certification of their unavailability was received from NPRC. See VA Form 3101 dated in February 2011. A formal finding on the unavailability of these records was also made in a March 2011 VA Memorandum. Also of record is a response from the National Records Personnel Center (NPRC), dated March 23, 2011, indicating that it had verified that the Veteran had active service from May 30, 1972 to May 31, 1974 and noting that subsequent service had been identified as Reserve and/or active duty training (ADT) only. See NPRC 3101 Print. In December 2012, the AMC/RO was informed by the Defense Finance and Accounting Service (DFAS) that they were unable to locate the Veteran in any of their active, inactive, reserve or retired roles. Of the few service personnel records that are currently associated with the claims folder, several Retirement Credit Reports show that the Veteran received points for both ADT and IDT between 1974 and 1978. These records verify the Veteran's Reserve duty dates only for the purpose of retirement points, and do not otherwise indicate his status as ADT or IDT for specific dates of service. Of greater significance, however, is a Chronological Record of service, which appears to show that the Veteran was on ADT JOTC (Jungle Operations Training Center) from September 18, 1976 to October 2, 1976, at Fort Sherman in Panama. As it seems the Veteran had at least one period of ADT in 1976, (the time period encompassing his claimed back injury) the next pertinent question is to what extent his current low back problems are continuing symptoms from the alleged in-service injury in 1976 as opposed to directly related to post-service motor vehicle accidents. This is a medical question, which must be addressed by a review of the pertinent medical evidence of record and examination of the Veteran. The Board emphasizes that the Veteran is competent to report the onset of back pain since service (as this requires only personal knowledge and not medical expertise and as it comes to him through his senses). Therefore, when forming an opinion as to the etiology of his current back disorder, the examiner must discuss the Veteran's claim of a back injury during service, and his contention that he developed chronic pain during service and has experienced continued problems since then. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). That said, however, the Veteran's contentions as to his symptoms must be considered in light of the medical and other evidence of record to determine whether his lay testimony is credible (a factual determination) to resultantly have probative value. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Finally, any ongoing medical records should be obtained. In this regard, the Board notes that it appears that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in February 2013. The Board regrets that a remand of this matter will further delay a final decision in the claim on appeal, but finds that such action is necessary in view of the foregoing discussion to ensure that the Veteran is afforded due process of law. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a notice letter regarding his service-connection claim for a low back disorder that complies with the notification requirements of the VCAA. Such letter should specifically advise the Veteran of the specific regulations governing service connection where there is reserve component service, such as ADT or IDT. 2. After obtaining the appropriate release of information forms from the Veteran, procure any medical records, not already in the claims file, pertaining to back treatment received since February 2013. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 3. Then, schedule the Veteran for a VA examination to determine the onset and etiology of his current low back disorder. [The examination should be conducted by an examiner different than the one who completed the February 2011 VA examination and the December 2012 addendum opinion.] The claims folder must be made available to the examiner for review of the case, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. All indicated tests and studies, including X-rays, should be performed, and the examiner should review the results of any testing prior to completing the report. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should clearly identity any back disorder(s) found. For any back disability diagnosed on examination, the examiner should provide an opinion addressing whether, assuming the Veteran was injured during service as he reports, it is at least as likely as not (a degree of probability of 50 percent or higher) that such disorder is medically consistent with Veteran's description of the claimed in-service injury during ADT in 1976. The examiner must consider the Veteran's lay testimony in addition to the documentary evidence of record. In particular, his/her opinion should reflect consideration of the Veteran's descriptions of the in-service back injury and symptoms, the multiple post-service motor vehicle accidents, and clinical documentation of post-service treatment. The examiner is asked to discuss medically known or theoretical causes of the Veteran's diagnosed back disorders in determining the likelihood that any current back disorder was caused by his claimed in-service injury as opposed to some other cause. The examiner should provide a complete rationale for all conclusions reached. The medical reasons for the opinion provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter that 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 or by the 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). _________________________________________________ THERESA M. CATINO 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).