Citation Nr: 1324164 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 11-14 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to a disability rating in excess of 40 percent for postoperative residuals, duodenal ulcer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from October 1960 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating action by the above Department of Veterans Affairs (VA) Regional Office (RO). 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 A remand of this case is warranted as a matter of procedural due process. The Board notes that following the March 2011 Statement of the Case, VA medical records, available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Veteran's electronic Virtual VA folder in March 2013. This evidence is non-duplicative of the evidence already of record and is relevant to the issues currently on appeal. However, the record reflects that this additional pertinent evidence has not been considered by the RO, and that a written waiver of such consideration has not been submitted by the Veteran. Under applicable law, the Board may not consider newly-submitted evidence in the first instance unless the claimant has waived initial consideration by the appropriate agency of original jurisdiction (here, the RO). See 38 C.F.R. §§ 19.37, 20.1304 (2012). Consequently, this case must be remanded to the RO to readjudicate the claims on appeal taking into consideration the newly-received evidence. The Board's review of the claims file reveals that further development on the matter of entitlement to service connection for back injury residuals is warranted. The Veteran asserts that he was treated for back problems at the Grand Forks Air Force Base (AFB) Hospital in North Dakota during service in 1961, 1962 and 1963. See Notice of Disagreement dated in July 2009. However, service treatment records associated with the claims file do not contain any notations concerning treatment for a back injury. The Veteran also provided a history of continued post-service treatment for his back, from at least 1966, at the base hospital in Oakland, California and at the Oak Knoll NRMC (Naval Regional Medical Center). Thus, further efforts consistent with the VA's duty to assist obligation are necessary in order to obtain any additional in-service clinical records associated with the Veteran's period of active duty as well as any post-service records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In addition, VA clinical records show the Veteran was treated for chronic back pain beginning in 2007, variously diagnosed as lumbago and sciatica. While there is no medical evidence showing a relationship between any current back problems and service, the Veteran's assertions of an in-service back injury and subsequent post-service back problems raise significant medical questions regarding the onset of any disability. Therefore, a definitive medical evidence on the question of whether the Veteran currently has back injury residuals related to service, is needed before the issue can be properly adjudicated. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board emphasizes that the Veteran is competent to report the onset of back symptoms during and 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 any current back injury residuals, the examiner must discuss the Veteran's claim of an in-service back injury and his contention that he 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). With regard to his increased rating claim, the Veteran contends that his service-connected postoperative duodenal ulcer is more disabling than is reflected in the current 40 percent evaluation. In his July 2009 Notice of Disagreement, the Veteran indicated that he is seen regularly at the San Francisco VA Medical Center (VAMC) for constant distress from nausea and reflux. Such assertions indicates that his duodenal ulcer disorder may have increased in severity since his last VA examination in January 2009. See also VA Form 9 received in March 2009, VA Form 646 received in October 2012 and Informal Hearing Presentation dated April 2013. The Veteran is competent to provide evidence as to the severity of his symptoms. See 38 C.F.R. § 3.159(a)(2) (2012). To that end, while the 2009 VA examination is not necessarily too old to adequately evaluate his disability, as there may have been significant changes since then, a more contemporaneous medical examination is in order. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995) (VA examination required in increased rating claim where Veteran asserts condition worsened since most recent VA examination). The examination should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present symptoms and any significant pertinent interval medical history since the last VA examination in 2009. 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 June 2012. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the National Personnel Records Center (NPRC) or any other appropriate agency or facility, to include the Grand Forks AFB Hospital in North Dakota (or any other facility identified by the Veteran), to obtain any additional service treatment or in-service clinical records associated with the Veteran's period of active service from October 1960 to December 1964. Of particular interest are the complete hospitalization records, including, but not limited to: sick call records, laboratory studies, progress notes, nursing notes, physician's notes, and consultation reports stemming from treatment of the claimed back injury at Grand Forks AFB (or any other facility identified by the Veteran). The AMC/RO should inquire as to the approximate dates the Veteran was hospitalized or treated for his back at the Oakland Naval Hospital and/or Oak Knoll NMRC for the period 1966 to 1972. The AMC/RO should then obtain any VA clinical records pertaining to the Veteran's claimed back disorder and duodenal ulcer from the San Francisco VAMC from June 2012 to the present. 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). 2. Then, schedule the Veteran for a VA examination to determine the onset and etiology of any current back injury residuals. The claims file must be made available to the examiner for review of the case, and the examination report should include 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 are to 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 identify any back injury residuals found. The examiner should then provide an opinion addressing whether it is "at least as likely as not" (a degree of probability 50 percent or higher) that the Veteran currently has residuals of back injury that he sustained during his active service from October 1960 to December 1964. In providing this opinion, 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 its symptoms, as well as the post-service symptoms, and clinical documentation of post-service treatment. 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. 3. Also, schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected duodenal ulcer. The claims folder must be made available to the examiner for review of the case, and the examination report should include 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. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. All pertinent pathology found on examination should be annotated in the evaluation report. In particular, the examiner should note the presence (including frequency and duration) or absence of any vomiting, hematemesis, melena, anemia, weight loss, and abdominal pain. In addition, the examiner should discuss any need for ulcer therapy; the frequency and duration of any incapacitating episodes; and the extent of any impairment of the Veteran's health caused by his service-connected duodenal ulcer. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain 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. The Veteran 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 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). _________________________________________________ F. JUDGE FLOWERS 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).