Citation Nr: 1328637 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-07 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a respiratory disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from November 1963 to December 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2009, a statement of the case was issued in January 2010, and a substantive appeal was received in February 2010. A Board hearing was conducted in October 2012. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. 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 Low Back Disability The Veteran's service treatment records (STRs) document the following findings. In September 1965, he reported having "back trouble on and off for a long time." From October 1965 to November 1965, he was hospitalized for 15 days for low back pain; he reported at that time that he first noticed low back pain on bending or stooping one year prior, and that in April 1965, he had felt that he strained his back while carrying some furniture; he was assessed with a back strain. At his November 1965 service separation examination, his spine was evaluated as normal, but it was noted that he had been treated for low back pain and hospitalized in October 1965. Post-service VA treatment records dating since March 2009 have documented the Veteran's treatment for low back pain. VA x-rays of his lumbar spine in March 2009 showed degenerative changes. At a May 2009 VA spine examination, the Veteran was diagnosed with thoracic and lumbar degenerative changes and lumbar disc disease with right lower extremity radiculopathy. The examiner opined that there was no lumbar spine condition due to a lumbar strain in service in 1965; this opinion was based on the rationale that there was "no medical documentation of a continual low back condition after the initial event in 1965 in service." The examiner noted that the Veteran himself had stated that he had had intermittent back pain since discharge from service. (The Board notes that the examiner was a cardiology physician.) At his October 2012 hearing, the Veteran testified that he received private medical treatment for his low back pain "since the day [he] got out" of service and that he continued to receive current VA treatment (through the VA Health Care System in Bay Pines, Florida) as well private treatment for his low back disability. Any ongoing VA medical records are constructively of record and should be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). After the hearing, the Veteran submitted statements from two private physicians. In October 2012, Dr. Petteruti stated that he was the Veteran's family physician during the late 1960s and through the 1970s and that he had treated the Veteran for back problems. In December 2012, Dr. Cugini, Jr. stated that the Veteran had been under his care since August 2006 for multiple medical problems including degenerative disc disease of the lumbar spine. All available treatment records from these two doctors, as well as any other treatment providers identified by the Veteran, should be obtained. After completion of the above development, the Board believes it appropriate to afford the Veteran another VA spine examination by an appropriate specialist in order to determine whether any low back disability is related to service. Respiratory Disability The Veteran's STRs document treatment for multiple respiratory illnesses and symptoms from January 1964 to October 1965, including bronchitis, left lower lobe (LLL) pneumonia, upper respiratory infection, pharyngitis, hemoptysis, cough, and shortness of breath. At his November 1965 service separation examination, his nose, sinuses, lungs, and chest were evaluated as normal, but it was noted that he had been treated for bronchitis at two hospitals (in 1963 and in 1965). On a November 1965 report of medical history, he reported having a history of chronic or frequent colds. Post-service VA treatment records dating since March 2009 have documented the Veteran's treatment for respiratory complaints as well as bronchitis. VA x-rays of his chest in March 2009 showed no consolidative pulmonary opacity or pleural effusion appreciated. At a May 2009 VA respiratory examination, the Veteran reported that since his service discharge, he had had pneumonia seven times (the last in 1988) and was an inpatient for pneumonia in 1982 or 1983 at Rhode Island Hospital in Providence, Rhode Island. (All available treatment records from this facility should be obtained.) He was diagnosed with "pneumonia 1964, resolved." The examiner also noted the Veteran's subjective statement of recurrent pneumonia and bronchitis, but added that "this is not a diagnosis." The examiner opined that there was no respiratory condition due to a resolved pneumonia event in active service in 1964; this opinion was based on the rationale that there was "no medical documentation on continuity of a pneumonia/respiratory problem after discharge from service." The examiner noted that the Veteran himself had stated that he had had recurrent pneumonia on eight occasions (this was noted earlier in the report to be seven occasions) since discharge from service and repeated attacks of bronchitis. (The Board notes that the examiner was a cardiology physician.) At his October 2012 hearing, the Veteran testified that he received private medical treatment for his respiratory illnesses and symptoms after his service discharge and that he continued to receive current VA treatment (through the VA Health Care System in Bay Pines, Florida) as well private treatment for his respiratory illnesses and symptoms. Any ongoing VA medical records are constructively of record and should be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). After the hearing, the Veteran submitted statements from two private physicians. In October 2012, Dr. Petteruti stated that he was the Veteran's family physician during the late 1960s and through the 1970s and that he had treated the Veteran for respiratory illness. In December 2012, Dr. Cugini, Jr. stated that the Veteran had been under his care since August 2006 for multiple medical problems including chronic bronchitis/pneumonia. All available treatment records from these two doctors, as well as any other treatment providers identified by the Veteran, should be obtained. After completion of the above development, the Board believes it appropriate to afford the Veteran another VA respiratory examination by an appropriate specialist in order to determine whether any respiratory disability is related to service. Accordingly, the case is REMANDED for the following actions: 1. After securing necessary releases, the RO/AMC should obtain all treatment records pertaining to the Veteran from the following treatment providers: Dr. Petteruti, for back and respiratory treatment; Dr. Cugini, Jr., for back and respiratory treatment; Rhode Island Hospital for respiratory treatment; and any other provider who has diagnosed or treated him for back and/or respiratory disabilities since his discharge from service. If any records are unavailable, then a negative reply is requested. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. The RO/AMC must make arrangements to obtain all outstanding (not already contained in the claims file) VA medical records of treatment the Veteran has received for his claimed disabilities, including ongoing records from the VA Health Care System in Bay Pines, Florida. If any records requested are unavailable, the reason must be explained for the record. 3. After completion of the above, the RO/AMC should schedule the Veteran for a VA spine examination by an appropriate specialist to determine the nature and likely etiology of any current low back disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer a response to the following question for each diagnosed low back disability: a) Is it at least as likely as not (a 50% or higher degree of probability) that such low back disability was manifested during service? Please address any pertinent symptoms/treatment documented in service records. b) Is it at least as likely as not (a 50% or higher degree of probability) that such low back disability is causally related to any incident of the Veteran's military service? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 4. After completion of Instructions #1-2 above, the RO/AMC should schedule the Veteran for a VA respiratory examination by an appropriate specialist to determine the nature and likely etiology of any current respiratory disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer a response to the following question for each diagnosed respiratory disability: a) Is it at least as likely as not (a 50% or higher degree of probability) that such respiratory disability was manifested during service? Please address any pertinent symptoms/treatment documented in service records. b) Is it at least as likely as not (a 50% or higher degree of probability) that such respiratory disability is causally related to any incident of the Veteran's military service? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 5. After completion of all of the above, the RO/AMC should review the expanded record and readjudicate the issues on appeal. If any of the issues on appeal remain denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ ALAN S. PEEVY 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).