Citation Nr: 1330580 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-31 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for L5-S1 posterior facet sclerosis, claimed as a lower back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the Veteran's claims file. Since the hearing, the Veteran and his representative have submitted additional evidence accompanied by signed waivers of initial RO consideration of this newly-submitted evidence. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). 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 on his part. REMAND Unfortunately, a remand of this matter is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran seeks service connection for a back disorder, which the RO has characterized as L5-S1 posterior facet sclerosis, the disability noted in a February 2010 X-ray study. The Board notes that the February 2010 VA examiner found that the Veteran's back disability was less likely as not caused by or a result of his complaints of lower back pain while in service, apparently because the examiner found that all the Veteran's back complaints in service were acute and there was no recent documentation of, treatment for, or complaints of lower back pain within the past 13 years. However, in May 2011 the Veteran testified before the undersigned during a Board hearing. At that time, the Veteran stated that his back problems started in service when he trained as a mortarman and had to carry mortar tubes weighing as much as 40 to 50 pounds in a rucksack on his back during marches. Including extra equipment, such as a rifle, the Veteran found himself carrying an estimated 60 to 70 pounds during exercises two to three times within a three-month period, depending on the training. See Board hearing transcript at pp. 4-6. He also trained as an infantryman when he carried a lighter smaller rucksack weighing approximately 30 to 40 pounds. Id. at p. 9. He also testified that during his 20-year active duty career he had ongoing problems with his back from typical infantry work, but no specific injuries. Id. at pp. 8-9. He felt that the wear and tear he went through regarding his back was directly related to his military duties and that his back complaints were more chronic and long-lasting, rather than acute, as he testified he was seen off and on through service for his back. Id. at pp. 14, 18. While the Veteran denied during the hearing that his back was x-rayed during service, two service treatment records indicate X-rays were taken in January 1992 and November 1995. The VA examiner failed to note these X-rays in the February 2010 VA examination. The VA examiner also did not have access to the Veteran's lay evidence provided during the Board hearing. Subsequent to the hearing, the Veteran and his representative provided three private German medical records (now translated) which showed that the Veteran had been treated for his back in the period between July 2006 and June 2009. The Board notes that the VA examiner was not able to note the two magnetic resonance imaging (MRI) scans in the February 2010 examination. More importantly, it is now obvious that the rationale of the VA examiner's opinion disfavoring service connection rested on an inaccurate factual premise. It is now clear that the Veteran did indeed seek medical attention for back complaints on multiple occasions since his discharge from active duty in August 2002. Therefore, as new and relevant evidence was added to the claims file after the VA examiner prepared his report, that report failed to note evidence of two back X-rays noted in the service treatment records, and the medical opinion now rests on an inaccurate factual premise, the Board must find that the February 2010 VA medical opinion is inadequate. Thus, on remand, a clarifying addendum opinion should be obtained from the February 2010 VA examiner. If the February 2010 VA examiner is unavailable, then the Veteran should be scheduled for a new VA examination and medical opinion. Finally, the Board notes that the Veteran testified that he was seeing a private chiropractor in Louisville twice a month. Id. at p. 14. However, he failed to provide these private treatment records to VA while the record was left open during the following 30 days. In addition, the Board notes that the claims file does not contain any VA treatment records dated after July 2010. The Board's review of the Veteran's claims file and Virtual VA eFolder in September 2013 discloses that in the wake of his Board hearing neither private chiropractic records nor current VA medical records were associated with either his claims file or his eFolder. 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). Therefore, on remand, the RO/AMC should associate with the claims file or with the Veteran's eFolder all outstanding records of evaluation and/or treatment from the VA clinic at Fort Knox, Kentucky, and the Louisville VAMC following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for his low back disorder. After the Veteran has signed any necessary releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file; in particular any records of chiropractic treatment by a private provider in Louisville, and any records of treatment or evaluation from the Louisville VAMC, or the VA clinic at Fort Knox, for the period from July 2010 to the present. VA treatment records should be requested whether or not the Veteran responds to the request for additional information. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Following completion of the above, the Veteran's claims file should be provided to the VA examiner who drafted the February 2010 examination report. If he is unavailable, then the Veteran should be scheduled for a new VA examination to determine the nature and etiology of any low back disorder. The examiner must state in his or her report that the Veteran's claims file, including evidence added since the last VA examination, was reviewed. The reviewer/examiner is requested in particular to review the Veteran's May 2011 Board hearing testimony of service incurrence, private German medical records recently translated, and those service treatment records pertaining to lower back pain complaints, including two with X-ray study results. Thereafter, the examiner should provide an (addendum) opinion addressing the following question: Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed low back disability is of service onset or otherwise related thereto. A rationale or explanation is requested for all opinions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After ensuring that the above development is fully undertaken, the RO/AMC should readjudicate the Veteran's claim of entitlement to service connection for a low back disability. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review, if appropriate. 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). _________________________________________________ BARBARA B. COPELAND 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).