Citation Nr: 1327317 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-20 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a chest disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946, with subsequent service in the Enlisted Reserve Corps and Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio, on behalf of the Regional Office located in Little Rock, Arkansas (RO). As a procedural matter, the Board notes that the Veteran submitted additional evidence in June 2013, after the RO last considered the claim; however, he waived his right to have the evidence considered by the Board. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Board remanded this case in December 2012 as the May 2012 VA examiner's opinions that the Veteran's current degenerative disease of the thoracolumbar spine and ischemic heart disease were not causally or etiologically related to his active service were inadequate for purposes of determining entitlement to service connection for the appealed disorders. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, while the May 2012 VA examiner noted some of the evidence of record, not all of the Veteran's relevant service treatment records or post-service endorsements of a back and/or chest disorder or symptoms were discussed. Specifically, the Veteran submitted a claim of entitlement to service connection for a chest and back disorder in October 1946. Therein, the Veteran claimed that he experienced intermittent "extreme pains" in his back and chest as a result of an in-service 1944 injury. The Veteran asserted that he received treatment for these injuries every other day at a hospital in Hawaii for approximately six months, but was not hospitalized. He also claimed that he received one-time treatment at an infirmary in Okinawa, Japan. In addition to submitting this claim, the Veteran also applied for outpatient treatment in October 1946 for a back and chest disorder. In a contemporaneous statement, the Veteran complained of pain in his "right lumbar, back region" and in the right side of his thorax. After describing additional symptoms, the Veteran reported that he was struck across his back by a cable at "docks" in Hawaii. He denied being hospitalized. Additionally, in May 1961, the Veteran asserted that he was treated for a back and chest disorder in 1944 at three separate medical facilities in Hawaii. As such, in June 1961, an additional search for resulting treatment records was undertaken, which yielded a singular hospital admission card concerning treatment for an abscess in 1944. However, after reviewing "miscellaneous records," it was also determined that the Veteran received treatment for unstated or unknown disorders or symptoms on three occasions in February 1944; three occasions in April 1944; two occasions in June 1944; once in July 1944; three occasions in August 1944; once in December 1944; twice in January 1945; and once in December 1945. The Board further noted, that despite the presence of post-service treatment records wherein the Veteran denied then experiencing a back and/or chest disorder or symptoms thereof, pursuant to this claim, the Veteran stated that he had continuously experienced a back and/or chest disorder or symptoms thereof since his active duty service. Moreover, although the May 2012 VA examiner merely listed some of the evidence of record in support of her rationale, the examiner did not explain how such evidence supported the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the case was remanded in order for the May 2012 VA examiner to consider all of the evidence of record, and to provide a thorough rationale for any opinion provided as to whether the Veteran's current back and/or chest disorder was incurred in or due to his active duty service. Barr, 21 Vet. App. at 311. In May 2013, the May 2012 VA examiner provided an addendum opinion that the Veteran's current back and/or chest disorders were not consistent with his assertions of in-service injuries. In providing such opinion, the examiner reiterated her May 2012 rationale, as follows: Review of the Veteran's service medical record contains one complaint on 26 April 1944 of mid thoracic pain after lifting a box. The treatment prescribed was massage and linament [sic] rub. Nothing follows. The discharge exam[ination] performed on 2 Jan[uary 1946] was normal. An examination performed on 2 November 1973 states "denied back injury/trouble.["] A certificate of examination performed on 7 April 1976 reads "denies back troubles/injuries[."] A physical exam[ination] dated 2 November 1983 states that "Veteran denies back ache or back injury or trouble[.]" Finally an examination dated on 5 February 2003 reveals that the Veteran stated that he had a back strain at Red River Army Depot "years ago' with 'no further treatment." In addition to reiterating the May 2012 opinion, the examiner noted a December 1975 examination, as well as a March 1979 examination that were performed to assess physical fitness for employment purposes. The examiner concluded that such examinations were negative for complaints or diagnoses of back and/or chest disorders. The Board finds the May 2013 addendum opinion inadequate for rating purposes. The May 2012 VA examiner again failed to consider the Veteran's relevant service treatment records or post-service endorsements of a back and/or chest disorder or symptoms, as directed by the Board in December 2012. Furthermore, in providing the opinion, the examiner listed some of the evidence of record; however, she did not explain how such evidence supported the conclusion reached. Accordingly, another VA examination and opinion are necessary to make a determination in this case. Barr, 21 Vet. App. at 311. Finally, the Board remanded the case in order for the RO to satisfy VA's duty to assist, to include obtaining the "miscellaneous records" reviewed pursuant to a June 1961 records search which demonstrated that the Veteran was treated for unstated or unknown reasons on multiple occasions in 1944 and 1945. 38 C.F.R. § 3.159(c)(2) (2012). Pursuant to the Board's directive, the RO attempted to obtain such records; however, the RO was not successful. In its remand, the Board specifically stated that if the RO was not able to obtain such records, the RO must notify the Veteran and identify the specific records it was unable to obtain; briefly explain the efforts that it made to obtain those records; describe any further action to be taken by it with respect to the claim; and notify the Veteran that he was ultimately responsible for providing the evidence. There is no indication of record that the RO informed the Veteran of the aforementioned steps it took with respect to obtaining the missing records, nor an indication that it notified the Veteran that such records were unavailable. As such, there has not been substantial compliance with the December 2012 remand directives, the case must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. Regardless of the Veteran's response, the RO must notify the Veteran that it was unable to obtain the "miscellaneous records" referred to in the October 1961 report that demonstrated that the Veteran underwent treatment of an unknown or unstated nature on multiple occasions in 1944 and 1945; briefly explain the efforts that it made to obtain those records; describe any further action to be taken by the RO with respect to the claim; and inform the Veteran that he is ultimately responsible for providing the evidence. 2. The Veteran must be afforded an appropriate VA examination to determine whether any current back and/or chest disorder is related to his military service. The Veteran's claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies must be accomplished. Based on all the evidence of record, the findings of the clinical examination, and with consideration of the Veteran's statements, the examiner must state whether any currently diagnosed back and/or chest disorder was incurred in or related to the Veteran's active military service. In so doing, the examiner must specifically review and comment upon, but in no circumstances should an opinion be limited to: (a) the Veteran's October 1946 claim of entitlement to service connection for a back and chest disorder; (b) the Veteran's October 1946 application for out-patient treatment for a back and chest disorder; and (c) the Veteran's assertions that he experienced symptoms of a back and chest disorder since his active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).