Citation Nr: 1334962 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 05-31 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a thoracolumbar spine disability, to include scoliosis and degenerative disc disease (DDD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from May1967 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which declined to reopen the Veteran's claim of entitlement to service connection for a thoracolumbar spine condition, to include scoliosis. Jurisdiction over the Veteran's appeal has since been transferred to the RO in Waco, Texas. The claim of entitlement to service connection for a thoracolumbar spine disability was previously denied by the Board in July 1999 and March 2002. However, because additional relevant service department records have been received since the last decision, the Board is considering the Veteran's back disability claim on the merits without the need for new and material evidence. See 38 C.F.R. § 3.156(c) (2013). The Veteran testified at a hearing before a former Veterans Law Judge (VLJ) in April 2008. A transcript of the hearing is of record. In December 2012, the Veteran declined a new Board hearing. The Board previously remanded the Veteran's claim on appeal for further evidentiary development in July 2010, May 2012, and May 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the May 2013 remand, the Board instructed the Agency of Original (AOJ) to request available treatment records pertaining to in-service treatment for a back injury/pain from base dispensaries or other medical facilities at Fort Bliss, Texas, Fort Knox, Kentucky, and Fort Huachuca, Arizona, and from the U.S. Army Hospital in Heidelberg, Germany. The AOJ again requested these records from the National Personnel Records Center (NPRC) with negative results. There is no indication that the records were requested directly from the identified facilities. Additionally, recent VA treatment records associated with the claims file show that the Veteran had an MRI of his lumbar spine in approximately June 2009, in Lubbock, Texas. It appears, however, that these MRI results have not yet been associated with the claims file. The Veteran was provided a new VA spine examination in July 2013, the examiner diagnosed scoliosis, but did not comment on other lumbosacral spine disabilities that had been diagnosed since 2003, as requested in the remand. In rendering opinions regarding the etiology of the claimed lumbar spine disability, the examiner seemed to require, contrary to case law, that there be supporting clinical records. Accordingly, this claim is REMANDED for the following action: 1. Request records pertaining to the Veteran's reported in-service treatment for back injuries/pain directly from the base dispensaries or other medical facilities at Fort Bliss, Texas, Fort Knox, Kentucky, and Fort Huachuca, Arizona, and from the U.S. Army Hospital in Heidelberg, Germany. 2. Obtain outstanding treatment records pertaining to treatment for the Veteran's back, to specifically include an MRI of the Veteran's lumbar spine performed in approximately June 2009, presumably at a VA facility in Lubbock, Texas. 3. Efforts to obtain these records should continue until they are obtained; or it is reasonably certain that they do not exist or that further efforts would be futile. If requested records cannot be obtained, inform the Veteran; also tell him what efforts were made to obtain the records and what additional actions will be undertaken with regard to his claims. 3. Thereafter, regardless of whether additional records are obtained, ask the VA examiner who conducted the Veteran's July 2013 spine examination to review the record and provide a report including the following information: a) Specifically note all lumbosacral spine disabilities that have been appropriately diagnosed or otherwise found to be present since June 1977. b) Reconcile any finding that the Veteran did not have disc space narrowing with prior evidence of record diagnosing degenerative disc disease. See August 2000 VA examination report. c) If appropriate, provide a new opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed lumbosacral spine disability, to specifically include degenerative disc disease, had its clinical onset during active service or is related to an in-service disease, event, or injury, to include the Veteran's multiple reported in-service back injuries. d) Reconcile any opinion that the Veteran's scoliosis was not aggravated by service with the July 2000 VA neurologist's opinion that the Veteran's military service may have played a significant role in worsening his ongoing back pain. The examiner must provide reasons for all opinions, addressing the relevant medical and lay evidence of record. The examiner must address the Veteran's contention that he has had a continuity of spine symptomatology since his separation from service. If this examiner is no longer available, then the necessary opinions should be obtained from another qualified medical professional. If further examination is recommended, this should be undertaken. 4. Thereafter, review the claims file to ensure that the foregoing requested development, including the requested medical comment from the VA examiner, has been completed. If any requested development is not complete, implement corrective procedures. 5. If the claim on appeal remains denied, issue a supplemental statement of the case, and then return the appeal to the Board, if otherwise in order. The Veteran 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. 2013). _________________________________________________ Mark D. Hindin 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. See 38 C.F.R. § 20.1100(b) (2013).