Citation Nr: 1324313 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-07 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a back disorder claimed to be the result of an injury. ATTORNEY FOR THE BOARD Andrew Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1957 to June 1961. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). When filing his March 2011 Substantive Appeal (on VA Form 9) to complete the steps necessary to perfect his appeal of this claim to the Board, the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board, in other words a Travel Board hearing. The hearing was scheduled for August 20, 2012, and he was provided notice of the hearing date, time, and location of it in a preceding June 2012 letter. He failed to report for the hearing, however, so was marked as a "no show", and he has not since provided good-cause explanation for his absence or requested to have the hearing rescheduled. The Board therefore deems his Travel Board hearing request withdrawn. 38 C.F.R. § 20.704(d) (2012). Since, however, this claim requires further development before being decided on appeal, the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this appeal to provide the Veteran an adequate VA examination. VA has a duty to assist Veterans in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In a claim of entitlement to service connection, this duty to assist includes providing a thorough and contemporaneous medical examination for a nexus opinion when there is: 1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The McLendon Court clarified that the third element establishes a low threshold and requires only that the evidence "indicates" there "may" be a nexus between the current disability or persistent or recurrent symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus, but that is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability.) As concerning the requirement of current disability or persistent or recurrent symptoms of disability, the Veteran has VA treatment records dating back to 1997 chronicling his lower back condition. These records include continuous reports of chronic back pain, the most recent of which was in June 2010, and various diagnoses including degenerative disc disease (DDD) and anklyosis. Note (5) in 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Whereas fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Aside from this definition of ankylosis in Note (5) to Diagnostic Codes 5235-43, ankylosis elsewhere has been defined as a stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. As for the need to also establish occurrence of a relevant event, injury or disease in service, the Veteran has competently reported falling off the back of a truck onto ice while in service and resultantly injuring his back. See Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent.). He says that injury kept him off duty for a number of days to convalesce. His service treatment records (STRs) unfortunately could not be obtained. The National Personnel Records Center (NPRC), which is a military records repository, informed VA that any further attempt in obtaining the STRs would be futile seeing as though it is presumed they were destroyed in the 1973 fire damage at that facility. The RO since has prepared a memorandum making a formal finding on the unavailability of these records and duly notified the Veteran of this in a December 2009 letter explaining that he resultantly had 10 days to supplement the file with copies of the missing files, if he had them in his personal possession, or to identify where the originals may be. The RO also appropriately asked that he complete National Archives and Records Administration (NARA) Form 13055 (Request for Information Needed to Reconstruct Medical Data) in an effort to obtain any Surgeon General's Office (SGO) extracts or other records that might have compensated for his missing STRs, but to no avail. See VA Adjudication Procedure Manual, M21-1R III.iii.2.E.27.6 (Feb. 6, 2012) (indicating the RO must undertake proper action to notify a claimant of alternative sources of evidence he could provide or ask that VA obtain to supplement the record). See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which his STRs are presumed destroyed includes the obligation to search for alternative medical records, such as by having him complete and the return NA Form 13055 so the RO can obtain abstracts, etc., from the SGO). So there was compliance with 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(c)(2) in trying to obtain the records concerning his service, even the alternative records mentioned, but also with 38 C.F.R. § 3.159(e)(1) in providing him the required notice of the efforts made and the unfortunate results. When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing STRs. Cromer, 1 Vet. App. at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown.). The legal standard for proving the claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). Thus, missing records concerning the Veteran's military service, while indeed unfortunate, do not, alone, obviate the need for him to still have evidence supporting his claim by not only establishing he has the claimed disability but also by suggesting a relationship or correlation between the claimed disability and a relevant event, injury or disease during his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). This is the so-called "nexus" requirement to establish the necessary linkage between current disability and service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The Veteran maintains that his back disability began after the fall in service. The RO denied his claim because there is indication he has sustained additional ("intercurrent") injury to his back since service, in 1982/83, when apparently thrown through the window in a motor vehicle accident, which, since many years after his discharge from service, obviously had nothing to do with his service - hence, not the required service connection. He was not however provided a VA compensation examination before making that determination to more definitively establish the etiology of his claimed disorder, that is, whether it is due to the claimed injury during his military service versus the additional intercurrent injury since service. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Since the Veteran apparently underwent low back surgery during the early 1980s (in the 1982/83 timeframe) involving a lumbar fusion and laminectomy after sustaining intercurrent injury to his low back, try and obtain the records of that surgery and all related evaluation and treatment. If the records, assuming they still exist, are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if the are. So make as many attempts to obtain them as are required by this VA regulation, depending on who has them. Also appropriately notify him if unable to obtain these additional records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records or exhaustion of the required attempts to obtain them, schedule a VA compensation examination for a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the disability affecting the Veteran's back, irrespective of the particular diagnosis (e.g., DDD, ankylosis or whatever) is the result of his military service from July 1957 to June 1961, but especially his purported slip and fall off the back of a truck onto ice while in Alaska. Or is his current disability instead more likely the result of the additional ("intercurrent") injuries he has sustained since service - first in a motor vehicle accident in the 1982-84 time frame subsequently requiring surgery for laminectomy and fusion, as well as more recently in a motorcycle accident in 2002 or thereabouts? The reasons and bases for the opinion must be provided, so explanatory rationale is essential, if necessary citing to specific evidence in the file supporting conclusions. In formulating the opinion, the examiner must consider all of the relevant evidence in the claims file, including the Veteran's statements and records regarding his injury in service in contrast with the additional injuries since service, as well as the February 2004 and August 2008 statements from private doctors regarding his back pain. If the VA compensation examiner is unable to provide the requested opinion without resorting to mere speculation, he/she must not only expressly indicate this but, more importantly, discuss why an opinion is not possible or feasible, such as by specifying whether additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another and the limits of medical knowledge have been exhausted, or whatever may be the reason for being unable to provide a definitive response. In other words, merely saying he/she cannot respond without resorting to mere speculation will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then readjudicate the claim in light of this and all other additional evidence. If the claim continues to be denied, send the Veteran a Supplemental Statement of the Case (SSOC) and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 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). _________________________________________________ Keith W. Allen 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).