Citation Nr: 1334986 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-19 582 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from January 1974 to May 1974. He served on active duty from October 1991 to December 1991, and from October 1992 to April 1993. He also served as a member of the New Jersey Army National Guard, to include additional periods of ACDUTRA and inactive duty for training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO denied service connection for back and heart disabilities. In December 2010, the Veteran testified during a hearing before a Decision Review Officer at the RO; a transcript of that hearing has been associated with the claims file. In June 2013, the Board remanded the claims for service connection for back and heart disabilities to the RO, via the Appeals Management Center (AMC), in Washinton, DC, for additional development and adjudication. In an August 2013 rating decision, the AMC granted service connection for a heart disorder. This award represents a full grant of the benefits sought with respect to the issue of service connection for ischemic heart disease. As such, and since the Veteran has not expressed any disagreement with the August 2013 rating action, this issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). After accomplishing further action with regard to the issue remaining on appeal, the AMC issued a September 2013 supplemental statement of the case (SSOC), reflecting continued denial of the Veteran's claim for service connection for a back condition. The AMC then returned this matter to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veterans claim. A review of the documents in such folder reveals VA treatment records dated through April 2013; such records were considered in the September 2013 SSOC. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the remaining claim on appeal is warranted. With regard to the Veteran's claimed low back disorder, the Board's June 2013 remand noted that there was credible lay and medical evidence of a Jeep accident during a period of ACDUTRA. Specifically, service treatment records document a July 1985 incident in which the Veteran was pinned between a table and a truck when another individual lost control of the motor pool and it sped towards the Veteran. The Veteran was subsequently treated for a hip and pelvis injury during service but later reported back pain as a result of this incident after service. The Board's June 2013 remand directives indicated that a VA orthopedic examination was to be conducted to determine whether a back disability was related to service, or was caused or aggravated by a service-connected disability. The Veteran underwent a VA examination in August 2013. However, in rendering her opinion, the August 2013 examiner based her opinion on the lack of a documented back injury in the service treatment records. The VA examiner did not discuss the relevance or import of the Veteran's lay statements regarding back pain in service and immediately following service nor did she discuss relevance or import of his lay statements regarding injuring his back in the July 1985 incident. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that once VA undertakes the effort to provide an examination when developing a service connection 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. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Inasmuch as the August 2013 VA examiner did not clearly consider and discuss all pertinent evidence-to include the Veteran's current assertions as to experiencing back pain in service, pain following service and the reported in-service injury, the Board finds that the VA opinion is inadequate, and that further medical opinion--based on full review of the record (to include the noted lay assertions) and supported by clearly stated rationale-is needed to fairly resolve the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the August 2013 VA back examiner to review pertinent evidence and provide an addendum opinion. The RO should only arrange for further examination of the Veteran if the prior examiner is unavailable or if further examination of the Veteran is deemed necessary. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtaining further medical information in connection with this claim, to ensure that the record is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As for VA records, the claims file reflects that the Veteran has been receiving treatment for his various disabilities from the VA Medical Center (VAMC) in Wilmington, Delaware and that records from that facility dated through April 2013 are associated with the file; however, more recent records may exist. 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). Hence, the RO should obtain all records of pertinent treatment from the Wilmington VAMC (since April 2013) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the last adjudication of the claim. Accordingly, this e matter is hereby REMANDED for the following action: 1. Obtain from the Wilmington VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran related to his lumbar spine, dated since April 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record Clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, to the examiner who provided the August 2013 opinion for an addendum opinion. For the diagnosed lumbar degenerative disc disease with radiculopathy, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-specifically, an injury incurred or aggravated during the July 15, 1985 period of INACDUTRA. The examiner should also discuss the impact, if any, of the Veteran's October 2004 motor vehicle accident (as documented in an October 2004 private emergency room record) and his reports of sustaining a back injury at work in 2003 (as documented in a February 2010 private treatment note). In rendering the requested opinion, the examiner should specifically consider and discuss the service treatment records and post-service treatment records. If the examiner who provided the August 2013 opinion is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, document that fact in the claims file, and arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. In such instance, the entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should set forth all examination findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have 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. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).