Citation Nr: 1337909 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 05-41 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active service from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision in which the RO, inter alia, declined to reopen the Veteran's previously-denied claims for service connection for a back disability and a left shoulder disability. In November 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In November 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In September 2009, the Board reopened the claims, and remanded the claims for service connection for a back disability and left shoulder disability, on the merits, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. After completing the requested development, the AMC denied both service connection claims (as reflected in a November 2010 SSOC) and returned these matters to the Board for further consideration. In February 2011, the Board denied the claims for service connection for back disability and left shoulder disability. The Veteran appealed the Board's February 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the Court granted the joint motion for remand filed by representatives for both parties, vacating that portion of the decision in which the Board denied service connection for a back disability, and remanding that claim to the Board for further proceedings consistent with the joint motion. As noted in the joint motion, the Board's denial of service connection for a left shoulder disability was not disturbed. In April 2013, the Veteran submitted a written statement directly to the Board, which appears to include a request for a new Board hearing. As indicated above, however, the Veteran was afforded a Board hearing in November 2006, during which he was given an opportunity to present testimony and evidence in support of his claim. See 38 C.F.R. § 20.700 (2012). This appeal was previously remanded by the Board in April 2012 and most recently in April 2013. In April 2012, the Board remanded the claim for service connection for a back disability to the RO, via the AMC, for further evidentiary development consistent with the joint motion. In April 2013, the Board determined that the development requested in the previous remand has not been substantially complied with and remanded this appeal again for evidentiary development. After completing the requested development, the AMC has continued to deny the claim (as reflected in a February 2013 SSOC,) and returned the matter on appeal to the Board for further consideration. For the reasons expressed below, the matter remaining 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. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. REMAND Unfortunately the Board finds that further RO action in this appeal is warranted, even though such it will, regrettably, further delay an appellate decision in this matter. As noted in the Introduction, in April 2013, the Board remanded the Veteran's claim for service connection for a back disability in order to obtain an addendum opinion from the VA physician who conducted a January 2013 VA spine examination, as the VA physician did not address all theories of entitlement raised in this claim. Specifically, the Board noted that, while the January 2013 VA examiner addressed the theory of direct service incurrence, he did not address whether a back disability clearly and unmistakably pre existed service and was aggravated therein. The Board also noted that the VA examiner did not provide a rationale in support of his opinion regarding direct service incurrence that addressed the medical and lay evidence of record. In May 2013, the January 2013 VA examiner provided an addendum opinion wherein he stated that there is clear and unmistakable evidence that a back disability, namely spina bifida, existed prior to service. The examiner opined, however, that the disability clearly and unmistakably was not aggravated during or as a result of service because the service treatment records are silent for any treatment or diagnosis of lumbosacral strain or back condition. While the VA examiner reviewed the record and correctly noted the lack of objective medical evidence of a back disability or injury in the STRs, the VA examiner did not address or discuss whether the competent lay evidence of record - which establishes that the Veteran incurred a back injury in service and received treatment for such injury in service - has any impact on his conclusions regarding whether the pre-existing back disability was aggravated during service, as well as whether a back injury was actually incurred in service and whether the current back disability is related to the Veteran's military service. Without adequate consideration of the competent lay evidence of record, the medical opinions of record remain inadequate and insufficient on which the Board to adjudicate this claim. In fact, the Court has specifically ordered that the lay evidence of record be given adequate consideration. See December 2011 Joint Motion for Remand and Court Order. As a result, to ensure that, as previously sought, an opinion is obtained that addresses all medical and legal theories raised in connection with the claim and to afford the Veteran full due process in this regard, the Board finds that another remand is needed to ensure compliance with the December 2011 Court Order and the Board's previous remand instruction regarding obtaining a medical opinion. See Stegall v West, 11 Vet App 268, 271(1998) (a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). On remand the RO/AMC should obtain an appropriate opinion from the physician who conducted the January 2013 VA examination. Prior to obtaining further medical opinion in this case, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The evidentiary record currently includes outpatient treatment records from the VA Medical Center (VAMC) in Providence, Rhode Island and its associated facilities, dated through June 2013. More recent records from this facility 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 from the Providence VAMC all outstanding, pertinent records evaluation and/or treatment of the Veteran since June 2013, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. 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 (West 2002); 38 C.F.R. § 3.159 (2012). 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. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Providence VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since June 2013. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After all outstanding records are associated with the claims file, arrange for the physician who conducted the January 2013 VA spine examination to review the record and provide an addendum opinion. The entire claims file, to include a complete copy of the REMAND, along with copies of any pertinent must be made available to the reviewing physician, and the addendum report should include discussion of the Veteran's documented medical history and assertions. The examiner is requested to address each of the following questions. In answering each question, the examiner must note that the lack of objective evidence showing treatment or complaints during service does not, in and of itself, render the Veteran's report of such incredible. The examiner must consider the competent lay evidence of record establishing that the Veteran incurred an injury during service and was treated therein. The examiner must not simply acknowledge the existence of the lay evidence of record - he must provide a discussion as to what impact, if any, the lay statements have upon the stated conclusion(s). A rationale must be provided for each opinion offered. * Clearly identify all current back disabilities manifested since December 1969. * With respect to each diagnosed disability, provide a response to the following: (a) Did the disability clearly and unmistakably exist prior to service entrance? (b) If so, was the disability clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service? In answering the foregoing, the examiner must consider and discuss all pertinent in- and post-service medical treatment records and the Veteran's assertions-to include the notation in the February 1966 enlistment examination report that the Veteran reported experienced recurrent back pain prior to his enlistment into service, as well as the February 1976 letter from Dr. Derbyshire which indicates that the Veteran was diagnosed with spina bifida oculta in April and May 1970. (c) For each disability of the back that is found not to have clearly and unmistakably existed prior to service, the examiner is to opine as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include injury therein. 3. 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). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (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) (2013).