Citation Nr: 1326671 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-22 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for residuals of a neck injury. 2. Entitlement to service connection for residuals of a back injury. ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty service from June 7, 1998 to August 21, 1998, during the Gulf War Era. He also had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), apparently from June 16, 1996 to August 8, 1996; June 16, 1997 to August 8, 1997; January 9, 1999 to January 23, 1999; and September 20, 1999 to October 2, 1999. This appeal to the Board of Veterans' Appeals (Board) is from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran submitted two statements from private physicians that opined that the cervical and low back pain could partly or fully be a consequence of his active duty in the military. (See September 2010 Written Statements by Dr. Potts and Dr. Decker). The Veteran's December 1996 Report of Medical Examination for enlistment purposes noted that he had mild thoracic scoliosis, asymptomatic. The Veteran was afforded a VA examination in July 2011. The examiner opined that there was no documentation of any C/O or treatment for lumbar spine pain until 2007 which began after a four wheeler accident and that it was as likely as not the cause of his current low back pain and cervical pain. However, the VA examination opinion is inadequate. The VA examiner did not opine as to whether the preexisting mild thoracic scoliosis was aggravated by service. An additional VA examination/opinion is required. In January 2011, the RO/AMC issued a formal finding of unavailability of STRs. However, the RO/AMC only requested records from June 27, 1997 to August 8, 1997. (See October 2010 Request for Military Records; December 17, 2010 Faxed Request to MRRB for verification of service for June 27, 1997 to August 08, 1997). No attempt has been made to obtain service personnel records (SPRs) and/or determine the dates of ACDUTRA and INACDUTRA. This should be accomplished on remand. As the case must be remanded, the RO/AMC should make an additional request for the Veteran's complete service treatment records. The RO should attempt to obtain all treatment records from Dr. David Decker, Dr. William Potts, Baptist Hospital East, the Immediate Care Centers on Shelbyville Road and in Westport Village, and Norton Immediate Care Center. Although the Veteran attempted to obtain some of these records, VA should attempt to obtain these records. (See September 2010 Written Statement from Veteran). Records should also be obtained from B.O. Rand, M.D. and David Petruska, M.D. at Louisville Neurosurgical Specialists. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's service treatment records from all periods of service (from 1996 to 2004), to include all clinical records. If these records are not available, a negative reply is required. 2. Contact the National Personnel Records Center and/or any other appropriate source to verify all of the Veteran's periods of ACDUTRA and INACDUTRA, including, but not limited to, from June 16, 1996 to August 8, 1996; June 16, 1997 to August 8, 1997; January 9, 1999 to January 23, 1999; and September 20, 1999 to October 2, 1999. A complete copy of his service personnel records should also be requested. If these records are not available, a negative reply is required. 3. Ask the Veteran to complete releases for Dr. David Decker; Dr. William Potts; Baptist Hospital East; Norton Immediate Care Center; B.O. Rand, M.D.; the Immediate Care Center on Shelbyville Road; the Immediate Care Center in Westport Village; and David Petruska, M.D. at Louisville Neurosurgical Specialists. Then, make arrangements to obtain these records. 4. Thereafter, schedule the Veteran for a VA examination of his spine. In conjunction with the examination, the claims folder must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify all back and neck disabilities found to be present. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to offer an opinion as to the following: (a) Whether it is at least as likely as not (probability of 50 percent or greater) that any current back or neck disability had its clinical onset during active service or is related to any in-service event, disease, or injury. (b) Did the Veteran's mild thoracic scoliosis (noted December 1996 Report of Medical Examination) undergo a permanent increase in severity during any subsequent period of service? In providing these opinions, the examiner should consider the Veteran's statements that he suffered neck and back trauma during service from falls during training exercises and that this was made worse by his vigorous training which included road marches with heavy ruck sacks, hauling heavy equipment, performing heavy lifting, and physical training, etc. The examiner must provide a comprehensive report and provide a detailed explanation of the rationale for each opinion expressed. 5. Next, review the examination report for compliance with the Board's directives. If an adequate response is not offered for any directive, then return it to the examiner for an addendum. 6. Finally, readjudicate the claims in light of the additional evidence obtained. If the benefits sought are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the case to the Board for further appellate consideration. 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 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). _________________________________________________ P.M. DILORENZO 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).