Citation Nr: 1328923 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 03-33 901 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for lumbar spine degenerative joint disease. REPRESENTATION The Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from April 1959 to January 1961. This appeal to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision. In the June 2003 rating decision, the RO, inter alia, declined to reopen claims for service connection for lumbar spine degenerative joint disease, for nerve problems, and for bilateral hearing loss, on the basis that new and material evidence had not been received. The Veteran filed a notice of disagreement (NOD) in January 2004, and the RO issued a statement of the case (SOC) in September 2004. The Veteran filed a substantive appeal (via a VA Form 9) in September 2004. In November 2006, the Board remanded these claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, to afford the Veteran an in-person Board hearing at the RO (Travel Board hearing). In January 2007, the Veteran and his wife testified during a Travel Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In a December 2007 letter, the RO informed the Veteran that he had been scheduled for another Travel Board hearing, as requested. In correspondence received later that month, the Veteran withdrew his request for a second Board hearing. See 38 C.F.R. § 20.704 (2007). In June 2008 and February 2010, the Board, inter alia, remanded the Veteran's claims to the RO, via the AMC, for further development. In an August 2010 decision, the Board declined to reopen claims for service connection for lumbar spine degenerative joint disease, nerve problems, and bilateral hearing loss, as well as denied entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for additional disability following right inguinal hernia repair at a VA medical facility, and a TDIU. The Veteran appealed the August 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating that portion of the Board's decision pertaining to denial of the requests to reopen claims for service connection for lumbar spine degenerative joint disease and for bilateral hearing loss, and remanding the claims to the Board for further proceedings consistent with the Joint Motion. In February 2012, the Board reopened the Veteran's claims for service connection for lumbar spine degenerative joint disease and bilateral hearing loss, but denied the claims for service connection for those disabilities, on the merit, as well as a claim for service connection for psychiatric disability (for which an appeal had been perfected, in the interim). The Veteran appealed the Board's February 2012 denial of service connection for lumbar spine degenerative joint disease to the Court. In December 2012, the Court granted a Joint Motion for Remand, filed by representatives for both parties, vacating that portion of the decision in which the Board denied entitlement to service connection for lumbar spine degenerative joint disease, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of the June 2013 brief by the Veteran's representative. For reasons expressed below, the claim remaining on appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In light of points raised in the Joint Motion, and the Board's review of the claims file, further RO action on the matter of the Veteran's claim for service connection for lumbar spine degenerative joint disease is warranted. As pointed out in the Joint Motion, in the February 2012 decision the Board noted that the Veteran's service treatment records reflect that, in June 1960, he complained of back pain following heavy lifting, and that, while an impression of muscle sprain was then indicated, no lumbar spine abnormalities were noted on the discharge examination report. Following service, on VA examination in December 1997, an x-ray of the lumbar spine revealed lumbosacral joint changes and he was diagnosed with degenerative joint disease of the lumbar spine.. On VA examination in August 2004, the Veteran reported that he was required to do heavy lifting with mortars, and that he was diagnosed with muscles strain during service. He indicated that he always had low back pain since that time. It was noted that the Veteran had been a truck driver for 20 years after service, and stopped working in 1980 due to back pain. After a physical examination and x-rays, a diagnosis of degenerative arthritic disc disease of the lumbar spine was indicated. The examiner indicated that he had reviewed the Veteran's service treatment records, and the only mention of back pain was as noted above. He indicated that the findings on examination were that which can normally occur with aging and a history of heavy lifting through one's adult life. Therefore, he opined that it was less likely as not that the Veteran's present lumbosacral problems are related to service. During the Veteran's January 2007 Board hearing, he reported that he initially injured his lumbar spine lifting heavy objects in service. He indicated that he experienced continuing back problems in and since service. In the February 2012 decision, the Board noted that the Veteran had a current diagnosis of degenerative joint disease, and that that it was established that the Veteran experienced a low back problem in service related to heavy lifting. However, it was determined that competent, probative evidence did not show that the low back problem occurring in service resulted in the current lumbar spine disability. The Board noted that there was no other lumbar spine diagnosis at any point during service and the first post-service evidence of lumbar spine disability was in the report of December 1997 VA examination reflecting a diagnosis of degenerative joint disease, over 30 years after the Veteran's separation from service. The Board also found that the August 2004 VA examiner's opinion was the only competent opinion to address the question of whether there exists a medical nexus between a current lumbar spine disability and service, and that that opinion was not supportive of the claim. However, in the Joint Motion, the parties noted that the August 2004 VA examiner's explanation that the Veteran's current disability was consistent with aging and a history of heavy lifting did not explain why it was not related to the Veteran's in-service heavy lifting or what heavy lifting the Veteran performed post-service that the examiner attributed his current disability to. It was also stated that the VA examiner discounted the Veteran's assertions because they were not in his service treatment records. Therefore, the Veteran's August 2004 opinion was deemed inadequate, and the claim remanded for further development. Under these circumstances, the Board finds that further medical examination and opinion-based on full consideration and the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-is needed to resolve the claim for service connection for lumbar Thus, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his lumbar spine degenerative joint disease; to include whether it is at least likely as not related to the Veteran's military service. The VA examiner should also discuss the relationship of any in-service heavy lifting and any post-service heavy lifting on the Veteran's current diagnosed disability. It should also be discussed what post-service heavy lifting the Veteran experienced and the August 2004 VA examination opinion should be discussed. The Veteran is hereby advised that, failure to report to the examination scheduled in connection his lumbar spine degenerative joint disease, without good cause, shall result in denial of the reopened claim for service connection. See 38 C.F.R. § 3.655(b (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 the scheduled examinations, the RO should obtain and associate with the claims file a copy of the notice 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 undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include all outstanding VA medical records. 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 all outstanding 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. On remand, the RO should also obtain other outstanding, Federal records. In a June 2013 letter, the Veteran stated that he was receiving disability benefits from the Social Security Administration (SSA). While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain 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). 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 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 or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any all outstanding, pertinent records of evaluation and/or treatment of the Veteran. 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. 2. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, follow the current procedures of 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 claims on appeal that is not currently of record. 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 (and copies of any pertinent electronic records to which the examiner does not have access), must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and his lay 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 physician should clearly identify all current lumbar spine disability(ies), to include degenerative joint disease. Then, with respect to each such diagnosed disability, the physician should opine 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 otherwise medically related to service-to particularly include alleged in-service heavy lifting of mortars, and the assessment of muscle strain noted therein.. In rendering the requested opinion, the physician should consider and discuss all pertinent medical and lay evidence, to include all in- and post-service treatment records, the opinion reflected in the August 2004 VA examination report, and the Veteran's and his wife's lay assertions as to in-service activities and continuity of back symptoms since service. If the physician discounts any of the Veteran's assertions, he or she should clearly so state, and explain why. Also, in determining whether the Veteran's current lumbar spine disability is more likely attributable to any cause(s) other than service, he or she should clearly indicate whether it is medically possible to separate the affects of alleged heavy lifting in service from heavy lifting normally experienced by an adult, and specifically experienced by the Veteran. 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 the Veteran 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. Steal v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development action deemed warranted, readjudicate the claim remaining on appeal). If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. §3.655, as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence 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).