Citation Nr: 1331995 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-38 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the RO in St. Petersburg, Florida. The Veteran appealed, and in December 2008, the Board denied the claim. The Veteran appealed and in November 2009, the United States Court of Appeals for Veterans Claims ("Court") granted a Joint Motion for Remand. In March 2010, the Board remanded the claim for additional development. In February 2012, the Board denied the claim. The Veteran appealed to Court, and in April 2013, the Court issued an Order and a Memorandum Decision that vacated the Board's February 2012 decision. The Veteran was afforded a travel board hearing before the undersigned in July 2008. A transcript of the proceeding has been associated with the file. 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 In two submissions, received in 2006, the Veteran stated that he had been treated at the Avon Park Correctional Center, North Florida Reception Center (NFRC), between 2002 and 2006. See Veteran's VA Forms 21-4141, dated in April and May of 2006. The RO subsequently obtained treatment reports from the NFRC, dated between 2002 and 2006. During his hearing, held in July 2008, the Veteran testified that he had first received treatment for his low back following service in 1988, while at a correctional facility, and that he had self-treated his symptoms with hot baths and over-the-counter medications prior to that time. He indicated that he had tried to get his treatment records from the Department of Corrections, but that he had not received a response. It was agreed that the record would be held open 60 days to allow him to obtain and submit these records. In October 2008, he submitted NFRC treatment reports, dated between 2004 and 2007. A review of the Court's April 2013 decision shows that it essentially stated the following: records from the Florida Department of Corrections showed that the Veteran had multiple periods of incarceration between 1979 and 2006. It did not appear that VA had attempted to obtain any additional records from the Department of Corrections following the Veteran's July 2008 hearing. The Veteran failed to raise any issue involving VA's duty to assist with the Board. Nevertheless, as a remand was required for other reasons (discussed infra), the Board should discuss the Veteran's argument that VA failed in its duty to assist with regard to attempting to obtain the alleged outstanding records from the Department of Corrections. A review of VA's duty-to-assist letters, sent to the NFRC in 2006, shows that VA specifically requested the Veteran's treatment for the period from January 2002 to December 2006 (presumably based on the Veteran's own statements in his VA Forms 21-4142). In any event, on remand, an attempt should be made to obtain records of treatment for the Veteran from the Florida Department of Corrections dated between 1988 and 2002. The Court's April 2013 decision also stated that an opinion relied upon by the Board, dated in June 2010, was inadequate. The Court explained that in an October 2006 opinion, that same physician had stated that an etiological opinion could not be provided without resort to speculation, however, the physician he did not explain "what changed to permit him to provide a nexus opinion." Given the foregoing, on remand, the Veteran should be afforded another VA examination of his low back, to include obtaining an etiological opinion. In this regard, the Board notes that in its February 2013 decision, it determined that the Veteran, who has a long history of incarceration for multiple offenses, was not a credible historian. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be taken to obtain all treatment records for the Veteran from the Florida Department of Corrections, dated between 1988 and 2001. All attempts to procure records should be documented in the file. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the RO should continue efforts to locate all identified records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Thereafter, a formal written unavailability memorandum must be added to the claims files, and the appellant must be so notified, and provided with an opportunity to respond. 2. The Veteran should be scheduled for an examination of his spine by the physician that conducted the examinations in 2006 and 2010. The claims folder and a copy of this REMAND should be reviewed by the examiner, and the examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. The purpose of the examination is for the physician to reconcile his initial determination (in 2006) that he could render an etiology opinion relating the Veteran's back disability to his active service "without resort to mere speculation" versus his later negative etiological opinion (in 2010). Notably, what evidence existed in 2010 that allowed him to make the more definitive opinion that was not present in 2006? The ultimate question is again whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any current low back disorder found was incurred in or caused by the Veteran's active duty service. If the physician that conducted the examinations in October 2006 and June 2010 is no longer available, the Veteran should be afforded a new examination. That examiner should must provide an opinion as whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any current low back disorder found was incurred in or caused by the Veteran's active duty service. That physician should also attempt to reconcile, to the best extent possible, his or her findings versus those made by the examiner in 2006 and 2010 as well as the private medical opinions of record. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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. Rationale for all requested opinions shall be provided. 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 that particular question(s). 3. To help avoid future remand, the RO/AMC must ensure that all requested action has 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case that considers all evidence added to the claims file, and should be afforded an appropriate period of time within which to respond thereto. 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 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN 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).