Citation Nr: 1331024 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-37 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for degenerative disc disease (DDD) of the thoracolumbar spine with arthritic changes, claimed as a lower back injury and low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which denied the above claim. In September 2010, the Board remanded the Veteran's claim for additional evidentiary development. Specifically, the Board requested that the Agency of Original Jurisdiction (AOJ) contact the Veteran and ask that he identify any private healthcare providers who have treated him for his low back pain since 1968. The AOJ was also instructed to schedule the Veteran for another VA spine examination to determine the nature and etiology of any low back disability that he may have. In a September 2010 letter, the Veteran was instructed to complete a VA Form 21-4142 medical release form for any non-VA provider who treated him for his low back pain. The Veteran was also scheduled for a VA spine examination in connection to his claim in September 2010. This examination was completed, and a copy of the September 2010 VA examination report has been associated with the Veteran's claims file. Unfortunately, the additional examination report and medical opinion obtained on remand remains inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As such, another remand is required to ensure that the Board remand instructions are carried out prior to a final adjudication of the claim. Accordingly, and for the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is needed to adjudicate the issue on appeal. Pursuant to the September 2010 remand, the Veteran was afforded another VA spine examination in September 2010. During the evaluation, the examiner noted that the Veteran's entire claims file was not available for review and that the only claims file available was a temporary claims file which predominantly contained the Veteran's mental health records. According to the examiner, the Veteran's December 2007 VA examination report did include a review of his claims file in its entirety. In reviewing the September 2010 examination report, the Board observes that the VA examiner appears to have based her review of the temporary claims file, as well as her subsequent determination, on the December 2007 VA examiner's review of the material. While the previous VA examiner had an opportunity to review the Veteran's claims file in detail, additional VA treatment records pertinent to the issue on appeal, and which neither examiner has had an opportunity to review, have since been associated with the claims file. Although the September 2010 VA examiner noted to have reviewed records on the "CPRS" system, these records were dated in 2007, and the evidence of record reflects that VA treatment records dating from July 2007 to June 2011 have since been associated with the claims file. These records demonstrate that the Veteran has continued receiving treatment for ongoing complaints of pain in his lumbar spine region. Moreover, the September 2010 remand directives specifically indicate that the claims file must be made available to and reviewed by the examiner in conjunction with the examination. Hence, the Board finds that this examination is inadequate, and another VA examination which includes a thorough review of the actual claims file in its entirety is required. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). In addition, the Board acknowledges statements made by the Veteran's representative in the September 2013 Informal Hearing Presentation, indicating that potentially relevant private treatment records may still be in existence. The Board notes that the AOJ has already attempted to retrieve potentially relevant private treatment records. Namely, in a September 2010 letter, the Appeals Management Center (AMC) provided the Veteran with a VA Form 21-4141 Authorization and Consent to Release Information form, and asked that he identify the names, addresses and approximate dates of treatment for all private health care providers who had treated him for his low back pain since 1968. It does not appear that the Veteran completed the necessary forms. Nevertheless, as the Veteran's claims file is being remanded once again for additional development, the AOJ should attempt once more to obtain any records of low back treatment that the Veteran may have received at any private facility since 1968. As this case is being remanded for the foregoing reasons, any pertinent VA treatment records should also be obtained on remand. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all private health care providers who have treated his low back pain since 1968. After obtaining the appropriate release of information form, procure copies of any records regarding low back treatment that the Veteran may have received at any private treatment facility since 1968. Copies of all such available records should be associated with the claims folder. If any records are not obtained or unavailable, inform the appellant pursuant to 38 C.F.R. § 3.159(e) and provide her an opportunity to submit the records. If these records do not exist, please ensure that the designated treatment facility and/or treatment provider clearly states as such in its response. 2. Obtain a complete copy of any recent treatment records regarding the Veteran's low back disability from the Salt Lake City, Utah VA Medical Center (VAMC) dated from June 2011 to the present. 3. Once these records have been obtained, schedule the Veteran for an appropriate VA spine examination to determine the nature and etiology of his current thoracolumbar spine disorder(s). The claims folder in its entirety, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the January 1964 and May 1964 service treatment reports documenting treatment for back pain and a diagnosis of a muscle strain. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any low back disorder(s) and provide diagnoses for all identified disabilities. For any thoracolumbar spine disability diagnosed on examination, or during the pendency of the appeal, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder(s) had its(their) clinical onset in service or is(are) otherwise related to the Veteran's military service, to include his in-service treatment for a muscle strain. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced low back symptoms since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to Court. 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).