Citation Nr: 1323711 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-13 730A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a left ankle disability. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected degenerative joint disease of the right ankle. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to August 1976. He also served with the Army National Guard and had a verified period of active duty for training (ACDUTRA) from July 31 to August 14, 1977. These matters come before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. In his April 2010 substantive appeal (VA Form 9), the Veteran requested a hearing before a Decision Review Officer (DRO). He subsequently withdrew this hearing request. In a January 2011 statement (VA Form 9), the Veteran requested a Board hearing in Washington, DC. A hearing was scheduled for a date in June 2013, and the Veteran was notified of the date and time of the hearing by way of a letter dated in May 2013. This letter was sent to his address of record and was not returned as undeliverable. A copy of the letter was also sent to the Veteran's representative. The Veteran failed to appear for the hearing. He has not explained his absence or requested to reschedule the hearing. Thus, his appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704(d) (2012). The Veteran's claim of service connection for a low back disability was originally denied in a January 2008 rating decision as there was no medical evidence of a low back disability. The Veteran subsequently submitted VA treatment records dated in February 2002 and January and July 2006, which include reports of back pain and X-ray evidence of degenerative changes of the dorsal spine. As VA was in possession of these treatment records at the time of the January 2008 decision and they reflect that the Veteran had been diagnosed as having a low back disability, the Board finds that new and material evidence was received within a year of that decision. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.156(a) (2012). The claim of service connection for a low back disability was readjudicated and again denied in the October 2009 rating decision, from which the current appeal originates. As new and material was submitted following the January 2008 rating decision, that decision is not final and the Veteran's initial claim of service connection a low back disability remains pending. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (a)-(b). Thus, the issue on appeal is characterized as stated above. (The claim of service connection for a low back disability is addressed in the remand that follows the decision below.) FINDING OF FACT In November 2010, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal his petition to reopen a claim of service connection for a left ankle disability. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran as to the issue of whether new and material evidence has been received to reopen a claim of service connection for a left ankle disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran submitted a signed written statement to the agency of original jurisdiction (AOJ) in November 2010 (VA Form 21-4138) in which he stated that he wished to withdraw from appeal his claim of service connection for a left ankle disability. As the Veteran has withdrawn the appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. ORDER The appeal as to the issue of whether new and material evidence has been received to reopen a claim of service connection for a left ankle disability is dismissed. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he 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). The Veteran contends that his current low back disability is related to back injuries that he incurred during his active duty service and during his verified period of ACDUTRA in 1977. In the alternative, he contends that the disability is related to his service-connected degenerative joint disease of the right ankle. Service treatment records include a June 1975 report of treatment for a back injury following heavy lifting. Examination revealed muscle spasms involving the lumbar paraspinous muscles bilaterally. There was no costovertebral angle tenderness. The Veteran was diagnosed as having a strain. He claims that he has experienced back problems ever since this in-service injury; however, there is some evidence to the contrary. For example, his August 1976 separation examination was normal other than for tattoos, scars, left ear hearing loss, and refractive error. Also, he reported on an August 1976 report of medical history completed for purposes of separation from service that he was not experiencing, nor had he ever experienced, any recurrent back pain. Additionally, a "Statement of Medical Examination and Duty Status" form (DA Form 2173) indicates that while on ACDUTRA in July 1977, the Veteran's left knee locked and caused him to fall and hit his left hand on a rock. Although there is no clinical evidence of any treatment for a back injury at that time, the Veteran claims that his "back was out" the following day, but that he did not seek treatment because he already had a profile. He subsequently obtained private medical treatment following his period of ACDUTRA. The Veteran was afforded a VA examination in September 2009 to assess the etiology of his current low back disability. The physician assistant who conducted the examination opined that it was not likely ("less likely than not") that the Veteran's low back disability (diagnosed as a lumbosacral strain) was a result of his service-connected right ankle disability or a lifting injury in service. The examiner did not provide any specific explanation or reasoning for the opinion concerning secondary service connection. With regard to direct service connection, the examiner explained that there was no evidence of any medical care or treatment for a back injury in service and that there was no claim of back pain during the August 1976 separation examination or on the report of medical history form completed at the time of separation. A second VA examination was conducted in December 2010 to assess the etiology of the Veteran's current low back disability. The physician who conducted the examination opined that the Veteran's then-diagnosed degenerative disc disease of the lumbar spine was not caused by or a result of the lumbar strain in service in June 1975. This opinion was based on the fact that the Veteran appeared to have sustained an isolated lumbar strain in service. It was noted that lumbar degenerative disc disease is a multifactorial condition, with the most common risk factor being advancing age. A review of medical literature revealed that there was no objective evidence to suggest that an uncomplicated lumbar strain with muscle spasms, which is treated with a muscle relaxer, would be the principal cause of the multitude of degenerative findings identified during a November 2009 MRI. Lumbar degenerative disc disease, arthritic changes, and low back pain are multifactorial normal diseases of life. A review of medical literature revealed no peer-reviewed, double-blind, placebo controlled studies confirming that an uncomplicated muscle strain with muscle spasm causes extensive diffuse disc degeneration. The September 2009 and December 2010 opinions are insufficient because they do not reflect consideration of the Veteran's reported back injury during a period of ACDUTRA in 1977 or directly address his report of continued symptoms since service. A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The September 2009 opinion that the Veteran's low back disability was not likely caused by his service-connected right ankle disability is of limited probative value because it is not accompanied by any explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, this opinion did not address whether the current low back disability was aggravated by the service-connected right ankle disability. See 38 C.F.R. § 3.310 (2012). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Furthermore, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran claims that he has experienced back problems ever since his back injury in June 1975 and that his "back was out" following a fall during a period of ACDUTRA in 1977. In light of these contentions, the Veteran's service treatment and personnel records for his periods of service with the Army National Guard may contain information relevant to his claim. These records have not yet been requested. Thus, on remand, efforts should be made to obtain a full copy of the Veteran's service personnel and treatment records relating to his National Guard service. During the December 2010 VA examination the Veteran reported that he had applied for Social Security Administration (SSA) disability benefits for an unspecified disability. The United States Court of Appeals for Veterans Claims (Court) has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Also, the Veteran reported in a December 2009 statement that he had received treatment for a back disability from Odessa Medical Center and Dr. Whitmore. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release to obtain the records. If the Veteran does not provide the release, VA will request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). These steps have not yet been taken with respect to the identified treatment records from Odessa Medical Center and Dr. Whitmore. As such records reportedly relate to treatment for the Veteran's back disability, they are directly relevant to the issue on appeal. Thus, a remand is also necessary to attempt to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Army National Guard, and any other appropriate source and request all available service treatment and personnel records pertaining to the Veteran's National Guard service. If the Veteran's service treatment records pertaining to his National Guard service cannot be obtained, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual, M21-1MR. Specifically request records of any relevant treatment reported by the Veteran. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. If the Veteran's service treatment or personnel records pertaining to his National Guard service are missing or are otherwise unavailable, this fact shall also be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. 3. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records relied on to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. The Veteran should be asked to complete authorizations for VA to obtain all records of his treatment for a low back disability from Odessa Medical Center and Dr. Whitmore. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional service records, post-service treatment records, and any evidence received from the SSA, schedule the Veteran for a VA examination to determine whether any current low back disability was incurred or aggravated in service. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current low back disability identified (i.e. any low back disability diagnosed since October 2007), the examiner should answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current low back disability had its onset during the Veteran's period of active duty from September 1974 to August 1976, had its onset during any period of ACDUTRA or INACDUTRA, is related to his documented back injury in June 1975 or his reported back injury at the time of a fall in July 1977, was permanently worsened beyond its natural progression during a period of ACDUTRA or INACDUTRA, or is otherwise the result of a disease or injury that had its onset during a period of active duty or ACDUTRA or an injury that occurred during a period of INACDUTRA? (b) Is it at least as likely as not (50 percent probability or more) that the current low back disability was caused (in whole or in part) by the Veteran's service-connected degenerative joint disease of the right ankle? (c) Is it at least as likely as not (50 percent probability or more) that the current low back disability was aggravated (made chronically worse) by the Veteran's service-connected degenerative joint disease of the right ankle? If any current low back disability was aggravated by the service-connected degenerative joint disease of the right ankle, the examiner shall also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In formulating the above opinions, the examiner should specifically acknowledge and comment on all low back disabilities diagnosed since October 2007, the Veteran's back injury in service in June 1975, and his reported back injury following a fall during a period of ACDUTRA in July 1977. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report a back injury during a period of ACDUTRA, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or injury, the examiner must provide a reason for doing so. (The absence of evidence of treatment for a particular back injury in the Veteran's service records cannot, standing alone, serve as the basis for a negative opinion). If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 6. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 7. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2013). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs