Citation Nr: 1338925 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-18 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a disability manifested by pain due to scar tissue, to include as secondary to the claimed low back disability. ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran had active service from December 1974 to May 1975. These matters come before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The June 2010 Rating Decision denied the Veteran's claims for service connection for a low back disability and for pain due to scar tissue. The Veteran filed a timely Notice of Disagreement in September 2010. The RO furnished the Veteran with a Statement of the Case in May 2012. The Veteran perfected his appeal with a Form 9 in June 2012. The Board notes that the RO denied the Veteran's claim for pain due to scar tissue on a direct basis. However, the Veteran claimed that the scar tissue and associated pain are secondary to the back disability he incurred in service. As a result, this claim is appropriately characterized as pain due to scar tissue, to include as secondary to the claimed back disability. Therefore, the Board has recharacterized this issue as reflected on the title page. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claims (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such file reveals that the documents contained therein are either duplicative or not relevant to the issues on appeal. 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. The issue of entitlement to an increased rating for the Veteran's service-connected psychophysiologic musculoskeletal disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See June 2012 statement from the Veteran). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. CONTINUE ON THE NEXT PAGE REMAND The Veteran's service treatment records show that in December 1974, the Veteran fell down stairs and injured his back. He received treatment for low back pain. He was diagnosed as having a lumbosacral strain. In May 1975, the Veteran was discharged. A February 1976 VA examination report reveals that the Veteran continued to complain of low back pain. He was diagnosed as having a chronic mild low back strain. February 1976 X-ray studies of the lumbar spine reveal a transitional vertebrae at the lumbosacral junction with pseudo joint on the left. There was a failure fusion of the lamina which was a congenital variant. The remaining lumbar bodies were normal in appearance. The intervertebral spaces were well maintained. The sacroiliac joints were normal. The provisional diagnosis at that time was psychophsiological musculoskeletal lumbosacral disorder. (See also February 1976 VA psychiatric examination). In a May 1976 rating decision, the RO granted service connection for psychophysiologic musculo-skeletal disorder manifested by complaints of low back pain. In December 2009, the Veteran filed a claim of service connection for a low back disorder other than the service-connected psychophysiologic musculo-skeletal disorder manifested by complaints of low back pain. In connection with his claim, he submitted August 2008 X-ray studies of the sacrum and coccyx. These studies demonstrate mild angulations of the distal coccygeal segment, suggesting prior trauma. There was no definite evidence of acute fracture. The evidence of record raises the question as to the current diagnoses of the low back and whether any diagnosed back disorder is related to service, to specifically include the injury involving falling down stairs in service. Attempts should be made to schedule the Veteran for an examination to include obtaining an opinion regarding the etiology of the Veteran's current back disability The Board notes that the Veteran is incarcerated; however, the duty to assist the Veteran is still applicable. All attempts to schedule the Veteran for an examination, to include an opinion, should be documented in the claims file. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995); and M21-1MR, Part III.iv.3.A.11.d. Additionally, in November 1977, the Veteran indicated that he had received treatment at the Pittsburgh VA Medical Center (VAMC). However, the claims file does not include record of treatment in Pittsburgh. Therefore, the RO shall request these records. 38 U.S.C.A. 5103(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated him for his low back disability or the pain due to scar tissue, to include as secondary to the claimed in-service back injury. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. Appropriate efforts must be made to obtain all available VA treatment records, including any records at the Pittsburgh VAMC. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Then, the agency of original jurisdiction (AOJ) must take all reasonable measures to schedule the Veteran for an examination. The AOJ should document all steps taken to schedule the Veteran for a VA examination, to include obtaining opinion evidence. If the Veteran remains incarcerated, the AOJ must confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison is feasible. See M21-1MR, Part III.iv.3.A.11.d. If an examination is feasible, schedule the Veteran for appropriate examination(s) to determine the nature and etiology or onset of his claimed low back disability and for any disability manifested by pain due to scar tissue, to include as secondary to the inservice back injury. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. A) The examiner should identify all disabilities of the low back. Thereafter, for each disability found, the examiner should state whether it is at least as likely as not (at least a 50-50 probability) that such disability is related to service, including to the back injury and/or complaints of back pain in service. B) The examiner should identify all disabilities manifested by pain due to scar tissue. Thereafter, for each disability found, the examiner should state whether it is at least as likely as not (at least a 50-50 probability) that such disability is related to service, including to the back injury and/or complaints of back pain in service. A complete rationale must be provided for all opinions offered. The opinion should take into consideration, the Veteran's service treatment records showing that he injured the back by falling down stairs, the February 1976 VA examination report and X-ray studies, all other postservice treatment records, as well as the Veteran's lay statements. If an opinion cannot be given without resort to speculation, the examiner should provide a rationale for such finding. The examiner should state whether he/she lacks the medical knowledge necessary to address the question(s) or whether there is additional information needed in order to address the question(s) raised. 3. After any additional development deemed necessary is accomplished, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). These claims 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). _________________________________________________ K. OSBORNE 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) (2013).