Citation Nr: 1330408 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-10 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam era from July 1965 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a back disorder. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals documents are either duplicative of the evidence or irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Here, a remand is required to obtain medical records and an examination. At the outset, the Board notes that the Veteran has verified combat service, having earned a Combat Infantryman Badge and a Purple Heart. First, private treatment records identified by the Veteran need to be obtained. In an appellant statement dated May 2009, the Veteran stated that "in 1984 to 1987, I went to the doctor for [stomach and back] pain. They did a test at Flagler Hospital in New Smyrna Beach, Florida regarding my stomach and back pain." Notably, Fish Memorial Hospital-not Flagler Hospital-is located in New Smyrna Beach. The claims file does contain a July 1994 VA request to Fish Memorial Hospital for records from 1984 to 1987. Fish Memorial Hospital responded, providing only one record dated June 1980 which involved the Veteran's wrist. Because the request to Fish Memorial Hospital was conducted prior to the identification of the Flagler Hospital records, the May 2009 statement likely did not refer to the June 1980 Fish Memorial Hospital record. Thus, the Flagler Hospital records should be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Second, the Veteran should be afforded another VA examination. Both VA spine examiners relied on a lack of medical evidence in reaching their conclusions. In a November 2009 VA examination, the examiner concluded that it was less likely than not that the Veteran's back disorder was related to his service, basing his conclusion in part on the fact that there were no post-service records until October 2006. In a February 2011 VA examination, the examiner concluded that he could not opine as to the etiology of the Veteran's back disorder without resorting to speculation. His conclusion rested in part on the fact that although the Veteran injured his back in service, there was no evidence of a chronic back disorder for at least the next 35 years. The existence of medical records of back pain from 1984 to 1987, however, would undermine a fundamental assumption of both examinations. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In opining as to the etiology of the Veteran's back disorder, the examiner should discuss how the duration of the Veteran's post-injury hospital stay affects the opinion. The November 2009 VA examiner based his opinion in part on the assumption that service treatment records (STRs) dated February 1968 accurately noted that the Veteran was admitted for four days and then discharged for light duty. The Veteran disputed this in a January 2010 notice of disagreement, arguing that "[the STR] makes it appear that I was only injured for four days when I was actually in a field hospital for weeks due to my injuries." Further, in an appellant statement dated May 2009, he claimed that he stayed in the hospital for about a month. The examiner should address whether a hospital stay of four days-compared with one month-would change the outcome of the nexus opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his back disorder. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. In particular, the RO should attempt to obtain the Flagler Hospital records from 1984 to 1987. All reasonable attempts should be made to obtain any identified records and to obtain any outstanding VA treatment. If any records cannot be obtained after reasonable efforts have been made, a formal determination that such records do not exist or that further efforts to obtain such records would be futile should be issued and documented in the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing #1 above, schedule the Veteran for a VA examination to determine the nature and etiology of his back disorder. The claims file and Virtual VA file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. An explanation for all opinions expressed should be provided. If an opinion cannot be provided without resort to speculation, it should be noted in the examination report, and an explanation provided for that conclusion. After a review of the evidence of record, the examiner should provide an opinion as to whether the back disorder is at least as likely as not (i.e., a 50/50 chance) causally related to the Veteran's military service. In offering any opinion, the examiner should consider the full record, to include STRs, medical records, the Veteran's lay statements, and any appropriate medical literature. In opining as to the etiology of the Veteran's back disorder, the examiner should discuss how the duration of the Veteran's February 1968 post-injury hospital stay affects the opinion. Specifically, the examiner should address whether a hospital stay of four days-compared with one month-would change the outcome of the nexus opinion, and if so, provide a supporting rationale. The appellant 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). _________________________________________________ K. MILLIKAN Acting 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).