Citation Nr: 1325890 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-47 118 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for low back disability claimed as back pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had honorable active duty service from July 1995 to November 6, 2002. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision in which the RO, inter alia, denied service connection for back pain. In August 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2010. In June 2011, the Veteran testified during a travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the Board hearing, the Veteran's representative submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. During the Board hearing, the Veteran testified that during his first period of military service, in 1997, he hurt his back by going on long marches with packs that weighed over a hundred pounds and he carried a heavy machine gun. He also testified that he sought medical care from the corpsman for pain in his lower back that caused his legs to go numb, and that he was instructed to take Ibuprofen and to do stretches for the sciatic nerve. Although the Veteran's service treatment records from his first period of service do not include any notations as to any complaints, findings, or treatment of back pain, and he denied recurrent back pain at several points during service, he has asserted that he was treated on more than one occasion in 1997 for back pain and leg numbness during service, and that the swelling in his lower back was assessed as involving the sciatic nerve. A June 2004 VA medical record documents the Veteran's report of the onset of back pain in 1997, during service, and assertion that the pain had not subsided. Although there previously was no evidence of an actual diagnosed current disability of the low back, during the hearing, the Veteran submitted to the Board a December 2010 VA medical record reflecting a provisional diagnosis of spondylolisthesis.. Given the Veteran's assertions as to in-service injury and continuity of symptoms, the current diagnosis of a lumbar spine disability, but the lack of medical evidence or opinion addressing the medical relationship, if any, between the current disability and service, the Board finds that an examination and opinion would be helpful in resolving the claim for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. Hence, the RO should arrange for the Veteran to undergo VA spine examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA medical records; specifically from Newington VA Medical Center (VAMC). The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding. pertinent records of VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. To ensure that all due process requirements are met, and the record is complete, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the furnish, or furnish appropriate authorization for it to obtain, any outstanding private medical. Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The Board further notes that, according to the July 2010 rating decision on appeal, in a May 2010 Administrative Decision, the RO determined that the Veteran's period of service from November 7, 2002 to February 2005 is dishonorable; however, the Administrative Decision is not associated with the claims file. Therefore, while this matter is on remand, the RO should associate with the claims file the May 2010 Administrative Decision, or a copy of that decision. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of these claims-to include, for the sake of efficiency, that submitted directly to the Board, notwithstanding the waiver of initial RO consideration of the evidence. Accordingly, this matter is hereby REMANDED for the following action: 1. Associate with the Veteran's claims file the May 2010 Administrative Decision concerning the Veteran's period of service from November 7, 2002 to February 2005, or a copy of that decision. 2. Obtain from appropriate VA facility(ies), to include the Newington VAMC, any outstanding, pertinent records of evaluation and/or treatment of the Veteran from Newington VAMC. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization for it to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any current disability(ies) affecting the lumbar spine, to include spondylolisthesis. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is medically related to alleged injury during the Veteran's period of military service from July 1995 to November 6, 2002. In rendering the requested opinion, the physician should specifically consider and discuss all pertinent lay and medical evidence, to include the treatment records and reports of medical history completed by the Veteran during service, all post-service treatment records, and the Veteran's contentions, to include assertions of continuity of symptoms since service. The physician should set forth all examination findings , along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for back pain in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim) and legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).