Citation Nr: 1329044 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-03 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for cervical strain with degenerative disc disease (DDD), including as secondary to service-connected residuals of a right buttock gunshot wound. 2. Entitlement to service connection for lumbar strain with DDD, including as secondary to service-connected residuals of a right buttock gunshot wound. 3. Entitlement to service connection for left lower extremity atrophy, including as secondary to service-connected residuals of a right buttock gunshot wound. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1967 to May 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Roanoke, Virginia RO. In August 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159. On January 2010 VA examination cervical DDD, lumbar DDD, and left leg atrophy were diagnosed. The examiner opined that it was less likely than not that these disabilities were related to the Veteran's gunshot wound because there was no injury to bony structures from the gunshot wound. In a May 2010 addendum opinion, the examiner again concluded that the Veteran's claimed disabilities were unrelated to his service-connected gunshot wound residuals because the gunshot wound did not involve bony structures. The Veteran claims that due to his gunshot wound injuries he acquired an altered gait, which led to the claimed disabilities. This theory of causation was not adequately addressed by the VA examiner. Hence, the examination is inadequate for rating purposes, and corrective action to secure an adequate examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). At the August 2011 hearing, it was determined that there were outstanding treatment records not yet associated with the record. Specifically the Veteran identified additional treatment records of D. Friar, D.C. As such records may contain pertinent information, they must be sought. Also, it was suggested at the hearing that that Veteran sought, but was denied, VA treatment for the claimed disabilities. If there are any existing records of such pertinent VA treatment, they are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify any (and all) private providers of treatment and/or evaluation he has received for his claimed neck, back and leg muscle atrophy disabilities since service and to provide the authorizations necessary for VA to obtain outstanding records of all such private evaluations and treatment, to specifically include those from D. Friar, D.C. The RO should secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified, (to specifically include the complete treatment records of D. Friar, D.C.). If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. The RO should determine if the Veteran received any VA evaluation or treatment for the claimed disabilities, and if so, obtain copies of clinical records of all such evaluations and/or treatment. 2. Thereafter, the RO should arrange for an orthopedic examination of the Veteran to determine the etiology of his neck, back, and atrophy disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide opinions that respond to the following: a. Was the Veteran's cervical strain with DDD caused or aggravated by his service-connected residuals of a right buttock gunshot wound? b. Was the Veteran's lumbar strain with DDD caused or aggravated by his service-connected residuals of a right buttock gunshot wound? c. Was the Veteran's left leg atrophy caused or aggravated by his service-connected residuals of a right buttock gunshot wound? The examiner must explain the rationale for all opinions, with citation to supporting factual data/medical literature, as indicated. The examiner is asked to specifically comment on the May 2009 opinion by Dr. Friar, expressing agreement or disagreement and the rationale for such. The examiner must also specifically address the Veteran's claimed theory of causation, i.e., that an altered gait due to right buttock gunshot wound residuals caused the claimed disabilities. The examiner must specifically address the aggravation aspect of each claim. 3. The RO should then review the record and readjudicate the claims on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ GEORGE R. SENYK 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).