Citation Nr: 1337473 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-10 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to April 2003. He is the recipient of the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board observes that the April 2009 rating decision denied service connection for degenerative joint disease of the lumbar spine; however, the record reflects diagnoses of lumbar facet syndrome, lumbago, and degenerative disc disease. The United States Court of Appeals for Veterans Claims has held that, when determining the scope of an issue on appeal, the Board has an obligation to broadly construe the claimant's description of the claim, the symptoms he describes, and the information he provides in connection with that claim. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, as shown on the first page of this decision, the Board has recharacterized the issue on appeal as entitlement to service connection for a back disorder. The Board further notes that the April 2009 rating decision also denied service connection for headaches. The Veteran entered a notice of disagreement with such denial in June 2009 and a statement of the case was issued in February 2012. However, he limited his April 2012 substantive appeal (VA Form 9) to the issue regarding service connection for his back disorder. Therefore, as there is no timely substantive appeal pertaining to the issue of entitlement to service connection for headaches, such issue is not properly before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013). The Veteran contends that he injured his back during service when he was rappelling and fell four stories after the rope gave way while serving at Fort Chaffee, Arkansas, in 1990. He was subsequently hospitalized for 13 days. The Veteran further alleges that he injured his back numerous times upon landing during his 125+ parachute jumps. Therefore, he claims that service connection for a back disorder is warranted. As an initial matter, the Board notes that that in light of the Veteran's receipt of the Combat Infantryman Badge, the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Therefore, any allegation of a back injury coincident with such combat service is considered to have occurred. Furthermore, the record reflects that the Veteran served in an Airborne unit, to include as an instructor, and, therefore, his allegations of injuring his back coincident to parachute jumps are consistent with the circumstances of such service. 38 U.S.C.A. § 1154(a). Therefore, the Board finds the Veteran's statements regarding injuring his back coincident with such duties to be credible. Moreover, the Veteran's service treatment records reflect complaints and treatment for back pain. As relevant, such records include a January 1992 airborne examination revealed a transverse faint scar in the left lumbar area. The spine was normal upon clinical evaluation. In September 1992, the Veteran complained of low back pain for three months following a heavy lifting injury. Such indicated that the Veteran had been hospitalized for the prior month at Fort Drum and a CT of the bones in the spine at such time showed degenerative joint disease L5/S1. The assessment was low back pain/degenerative joint disease without radiculopathy. A March 1994 inpatient treatment record cover sheet reflects that the Veteran was hospitalized for one night at Kenner Army Health Clinic after falling down a flight of stairs wearing full battle dress with Kevlar. The diagnoses were contusion of the left shoulder and contusion of left anterior superior iliac spine. In January 1995, the Veteran was seen for complaints of back pain that had been present for seven years. At such time, the Veteran reported a history of two instances of back trauma that required physical therapy. A February 1995 record reflects a history of chronic low back pain for approximately seven years that had increased in severity. It was observed that the Veteran had a history of two previous injuries to the spine that required hospitalization. X-rays in the past were noted to have revealed levoscoliosis in the lumbar spine, but were otherwise normal. The impression was low back pain. The Veteran was again seen in March 1995 for chronic low back pain. Another undated 1995 record notes the Veteran's position as airborne cadre and shows complaints of low back pain with right radiculitis for the prior seven years. An August 1996 record showing physical therapy for chronic mechanical low back pain. At such time, it was noted that the Veteran had complained of low back pain for the prior six to seven years, which had increased over the prior three months. It was also reported that X-rays were negative and that he had a prior history of an injury with jumping. Another August 1996 record shows a visit to the emergency room for complaints of low back pain for the prior year that kept getting worse. Chronic mechanical low back pain and muscle spasm were diagnosed. An October 1998 Profile reflects that the Veteran had sciatica and should perform physical training at his own pace and tolerance for the next two months. In August 2001 and September 2002 Reports of Medical History, the Veteran indicated that he had recurrent back pain and/or a back problem. In September 2002, he reported that he had back pain since he served as an airborne instructor. Additionally, he reported that, while training at Fort Drum, he fell on his back and subsequently spent 14 days in the hospital. Upon clinical evaluation in August 2001 and September 2002, his spine was noted to be normal. As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding service records pertaining to the Veteran's two hospitalizations. In this regard, he reported that he had been hospitalized at Fort Chaffee, Arkansas, in 1990, and his service treatment records reflect hospitalization at Fort Drum, New York, in approximately August or September 1992. Such records are not associated with the Veteran's service treatment records; however, the Board notes that inpatient clinical records may be filed under the facility name rather than the servicemember's name. Therefore, a remand is necessary in order to obtain hospitalization records from the base hospitals at Fort Chaffee and Fort Drum for the relevant time periods. Additionally, in light of the Veteran's in-service complaints, he was afforded a VA examination in March 2009 in order to determine the current nature and etiology of his back disorder. At such time, the examiner noted that an MRI revealed degenerative disc disease of the lumbar spine and concluded that the Veteran's low back condition is not caused by or a result of the lower back problems or conditions which were noted in this service medical records. The examiner indicated that the more likely etiologies for the Veteran's condition are the more common etiologies for osteoarthritis, which include age, obesity, deconditioning, heredity, ethnicity, concomitant health issues, subsequent trauma and intercurrent injury, lifestyle choices, and post-service occupation. However, the March 2009 VA examiner did not offer a rationale for his opinion. Moreover, it is not clear whether he considered the full record, as noted above, detailing the Veteran's consistent complaints of back pain during service and the September 1992 notation that a CT scan showed degenerative joint disease L5/S1. Moreover, since such VA examination, post-service treatment records from Brooke Army Medical Center showing diagnoses of lumbar facet syndrome and lumbago were obtained. Additionally, such records reflect the Veteran's treating physician's statement that the Veteran complained of lower back pain for over 15 years, injured during multiple bad military parachute landing falls in 1990, and between the years of 1994 to 1996 while on jump status. Therefore, the Board finds that the Veteran should be afforded a new VA examination so as to determine the current nature and etiology of his back disorder based on the full record. Finally, the Board finds that a remand is necessary in order to obtain outstanding treatment records. Specifically, the record reflects that the Veteran receives treatment at Brooke Army Medical Center and the most recent treatment records from such facility are dated in August 2010. The record further reflects that the Veteran received treatment from Consultants in Pain Medicine, on a referral basis from Brooke Army Medical Center. Finally, the February 2012 statement of the case reveals that an electronic review of VA treatment records from San Antonio, Texas, VA Medical Center dated from March 2009 through April 2009 was conducted; however, such records are not contained in the claims file. Therefore, while on remand, the Veteran should be requested to identify any VA or non-VA healthcare provider who has treated him for his back disorder and, thereafter, all identified records, to include those from Brooke Army Medical Center, Consultants in Pain Medicine, and the San Antonio VA Medical Center, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain inpatient clinical/hospitalization records pertaining to the Veteran's hospitalization at the base hospitals at Fort Chaffee, Arkansas, in approximately 1990, and at Fort Drum, New York, in approximately August or September 1992. The agency of original jurisdiction is advised that such records may be filed under the facility name rather than the Veteran's name. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the Veteran identify any VA or non-VA healthcare provider who has treated him for his back disorder. He should specifically be requested to provide authorization forms for records from Brooke Army Medical Center and Consultants in Pain Medicine. After receiving any necessary authorization forms from the Veteran, all identified records should be obtained, including those from Brooke Army Medical Center dated from August 2010 to the present, Consultants in Pain Medicine, and the San Antonio VA Medical Center dated from March 2009 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his back disorder. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. Following a physical examination and a review of the claims file, to include the Veteran's service treatment records, the examiner should address the following inquiries: (A) Identify all current diagnoses referable to the Veteran's back. (B) For each diagnosed back disorder, is it at least as likely as not related to the Veteran's military service, to include any injury incurred coincident with his combat service, any injury sustained as a result of his parachute jumps, and/or his numerous complaints and treatment for back pain as noted in the aforementioned service treatment records? (C) Did the Veteran manifest arthritis or an organic disease of the nervous system of the back/spine within one year of his service discharge in April 2003? In offering such opinion, the examiner should specifically consider the September 1992 service treatment record noting that a CT scan showed degenerative joint disease L5/S1. If so, what were the manifestations? In rendering any opinion, the examiner must consider the full record, to include all medical and lay evidence of record to include the Veteran's lay statements regarding the onset and continuity of back symptomatology as well as his Brooke Army Medical Center treating physician's statement that he complained of lower back pain for over 15 years, injured during multiple bad military parachute landing falls in 1990, and between the years of 1994 to 1996 while on jump status. For each opinion offered, the examiner is requested to provide a reasoned medical rationale. 4. After completing the above, and any other development that may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 claim 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 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). _________________________________________________ A. JAEGER 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).