Citation Nr: 1324745 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-48 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to September 1973. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from an April 2008 rating decision from the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in St. Petersburg, Florida. The Veteran requested a hearing at the RO before a Decision Review Officer (hereinafter "DRO") in his Substantive Appeal, received in November 2009. In March 2010, he withdrew that request. 38 C.F.R. § 20.702(e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claim that has been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). A VA Form 21-526, Veteran's Application for Compensation or Pension, received in June 2007, indicates the Veteran experienced a low back strain in service in January 1973, for which he was treated in service from January 1973 to September 1973. In a notice of disagreement (hereinafter "NOD"), received in July 2008, the Veteran reported that his back injury occurred concurrently with a prostate problem in June 1973, and that he was treated at the "Crailsheim," Germany "USA Clinic." He also indicated that due to the severity of his prostate and low back problems he was transferred to the U.S. Army Hospital in "Stuttgart," Germany, where he underwent further treatment for his back. The service treatment records, including those from "Crailsheim, Germany," are without findings of, or treatment for, any injury or illness to the lumbar spine. However, treatment records from the U.S. Army Hospital in Stuttgart, Germany have not been obtained. In July 2009 the RO issued a VA Form 21-6789, Deferred or Confirmed Rating Decision, which deferred judgment of the Veteran's claim in order to attempt to obtain hospital records for 1973 from the U.S. Army Hospital in Stuttgart, Germany. In September 2009, a response from the National Personnel Records Center (hereinafter "NPRC") may indicate that results of the search for clinical records from the U.S. Army Hospital at Stuttgart, Germany have been added to the record, but this is unclear from the record. In fact, review of the subsequent record, including a statement of the case (hereinafter "SOC") issued in November 2009, fails to show that these records have been obtained or reviewed and considered as part of the claims file. Thus, a new attempt to obtain these records and associate them with the claims file must take place prior to adjudication of the appeal. The Secretary's duty to assist the Veteran in obtaining evidence necessary to substantiate his claim includes making reasonable efforts to obtain all potentially relevant records that the appellant adequately identifies and authorizes the Secretary to obtain. See 38 U.S.C.A. § 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed.Cir.2009). Accordingly, the RO/AMC must attempt to obtain records, dated from January 1973 to September 1973, from the U.S. Army Hospital in Stuttgart, Germany. This may be accomplished via a review of the personnel file of record or via request through the NPRC or other government records repositories. Also, the Board notes that in a May 2013 Appellant's Brief, the Veteran's representative argued that he was entitled to VA examination and medical opinion to ascertain the nature and etiology of the lumbar spine disability. The Board agrees that this examination should take place on remand. Notably, the Veteran has a current lumbar spine disability. In this regard, private treatment records reflect that the Veteran has undergone treatment to his lumbar spine since 2002, and has been diagnosed, on multiple CT and MRI scans, with disability of the lumbosacral spine, variously classified. See also VA treatment record, dated in February 2008. Medical records also show that the Veteran has been treated for lumbar radiculopathy, chronic right L5 to S1 radiculopathy, and paresthesias in his left posterior thigh; and that he has undergone lumbar surgery to treat his symptoms. Significantly, the Board notes that various VA and private treatment records reveal the Veteran has a history of post-service injury to the spine, after hurting himself in April 2006 while working at Wal-Mart. However, a July 2006 private treatment record from "Dr. Noda," an orthopedic surgeon, shows an opinion that the Veteran's lumbar pain preexisted his Wal-Mart injury. Also, as noted above, he has sought treatment for low back pain since 2002. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, such as arthritis, which are listed in 38 C.F.R. § 3.309(a) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. If chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In January 2008, the Veteran's spouse, whom he married approximately 9 years after his separation from service, submitted a written statement, in which she reported observations that the Veteran experienced frequent low back pain since his separation from service in 1973. She reported that the Veteran's ability to walk, or sit for more than 10 minutes, has been impaired because of his low back pain, which radiates to the hip and legs. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In light of the applicability of 38 C.F.R. § 3.303(b) under Walker to the Veteran's claim, and in consideration of the fact that the Veteran has not been provided with VA examination relating to his claimed lumbar spine disability, the Board finds that such examination and medical opinion must be provided on remand. VA's duty to assist includes the duty to provide a veteran with a VA examination or opinion when the evidence "indicates" that a disability "may be associated with the claimant's service." See 38 U.S.C.A. § 5103A(d)(2)(B); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must contact the NPRC and/or other appropriate government records repositories in an attempt to obtain service treatment records produced at the U.S. Army Hospital in Stuttgart, Germany, from January 1973 to September 1973. The development for this information must be exhaustive, i.e., until the information is received or it is determined that any further attempt at verification would be futile. If the latter occurs, such a certification must be provided for the record (with a detailed description of the scope of the search for the information). 2. After completion of the development above, the RO/AMC must arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current lumbar spine disability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests are to be performed, and comprehensive social, educational and occupational histories are to be obtained. After reviewing the claims files, the examiner should provide an opinion with clear explanation and supporting rationale as to whether it is at least as likely as not (i.e., 50 percent or more probable) that that any current low back disorder is otherwise directly attributable to his military service. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any other lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms and his spouse is competent to report her observations of his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete explanation for such a finding must be provided. 3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the RO/AMC must consider all of the evidence of record and readjudicate the claims of service connection for the lumbar spine disability. If the benefit sought is not granted, the RO/AMC must issue a supplemental SOC and allow the Veteran and his representative an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). _________________________________________________ S. L. Kennedy 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).