Citation Nr: 1339057 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-26 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disability. WITNESSES AT HEARING ON APPEAL Appellant, spouse, and daughter ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1951 to January 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In July 2013, the case was remanded to the RO. [This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.] Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington D.C. VA will notify the appellant if further action on his part is required. REMAND As noted at the time of the Board's July 2013 remand, the notice provisions of the VCAA appear to be satisfied. However, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. A governing regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013). With respect to the factor C listed, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). One of the Veteran's theories of entitlement to the benefit sought is that his current back disability is related to an injury in service; alternatively he claims it is due to exposure to radiation in service. The Board's prior remand noted that the Veteran has alluded to the existence of medical literature that supports his theory of entitlement based on a nexus his back disability and exposure to radiation. He has not yet submitted (or provided citation to) such literature. A December 2009 service department response to a request for service treatment records (STRs) indicates that they are unavailable, apparently due to a fire at the National Personnel Records Center (NPRC) in July 1973. Accordingly, VA has a heightened duty to assist him in the development of evidence pertinent to his claim. At the March 2013 hearing before the undersigned, the Veteran testified that he injured his back in service loading truck tires; that on occasion thereafter in service he received heat treatment for his back; and that ultimately the problem went into remission until he reinjured the back lifting a seat from the back of a car in 1966. At that time he saw a chiropractor, a family doctor, and a specialist, and ultimately underwent fusion surgery. A November 1971 private medical record shows that the Veteran then underwent spinal fusion surgery. Ten years later, he sustained a back injury above the site of fusion while loading a trailer. The records of back treatment the Veteran received postservice associated with the record include private records from multiple providers beginning dated in October 1970 (when L4-L5 right herniated nucleus pulposis was noted). It is unclear whether these are from Dr. Dennis Francsali (in response to VA's January 2010 letter requesting him to provide all records of treatment he provided the Veteran from 1969 to the present) or from the Veteran himself. Regardless, a review of the records prior to the July 2013 remand found that they were obviously incomplete. For instance, the earliest record pertaining to back disability was an October 1970 private operative report (of laminectomy at L4-L5). As there obviously would have been medical evaluations (and perhaps treatment) prior to the surgery, reports of which are likely to show history and complaints reported by the Veteran, the record presented for consideration was incomplete. Likewise, the record did not include the evaluations which culminated in the November 1971 private surgery (a report of which has been submitted). The July 2013 Board remand ordered development to obtain all available records and to have the Veteran examined thereafter, with the examiner rendering an opinion as to the likely etiology of each back disability diagnosed. The examiner was to render an opinion as to whether any back disability diagnosed is related to the Veteran's service, to include as due to back injury therein. Later in July 2013, the RO sent the Veteran a letter requesting that he provide complete records, and asking him to submit authorizations for VA to secure them on his behalf. He did not respond to the request for the authorizations (and the year afforded by regulation for him to do so has not lapsed). Thereafter, in September 2013, contrary to the remand instructions to arrange for an examination of the Veteran after records development was completed he was scheduled for an examination without the records being received, resulting in an opinion based on an incomplete record (and therefore inadequate). Notably, the examiner also did not opine whether the Veteran's current lumbar spine disability is related to the strain in service, based on the Veteran's history reported on examination (necessary if injury in service were to be conceded). Thereafter, the RO readjudicated the claim. The Veteran is reminded that a governing regulation provides that if evidence (to include identifying information and releases for private records) requested in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). As the case was prematurely returned to the Board, with action sought by a prior remand not completed, it must be returned to the RO for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is aware that this case has been advanced on the docket. However, expedited handling of this case is entirely within the Veteran's control. He can expedite the process by a prompt response (or if such is his intent, by indicating that he will not provide the authorizations sought, thus waiving the remainder of the year period afforded to respond). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should secure for the record complete copies of all available additional records of evaluation and or treatment the Veteran has received for his back since service discharge. He must assist in this matter by providing identifying information [of each provider of evaluation and or treatment he received since his discharge from service] and releases for VA to secure records of all such evaluations and treatment by private providers. Records specifically sought must include those of all evaluations and consultations preceding the Veteran's 1970/71 spine surgeries. That would include from the Veteran's chiropractor, family practitioner, and specialist starting in 1966, or whenever back problems were first complained of post-service. The Veteran should also be asked to provide copies of (or at least search -enabling citation to) the medical literature he alleges supports his theory of entitlement (i.e., that the back disability is related to exposure to radiation). 2. After the above development is completed, the RO should arrange for the Veteran to be examined by an orthopedic spine surgeon to determine the likely etiology of his current spine disability. The Veteran's electronic record, to include all records available on VBMS and Virtual VA, must be reviewed by the examiner in conjunction with the examination. Any studies deemed necessary should be performed. Based on review of the record (to include copies of any supporting medical literature he submits)., and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each back disability found. (b) Please identify the likely etiology for each back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability is related to the Veteran's service, including as due to (i) exposure to radiation therein, and/or (ii) back injury therein. The examiner should indicate whether a herniated nucleus pulposus is the type of disability that would flow from a strain at least 15 years earlier. The examiner should also indicate whether a herniated nucleus pulposus is the type of disability that would existed 15 years (between 1955 and 1970) without treatment other than occasional chiropractor visits beginning in 1966. The examiner must explain the rationale for all opinions, citing to supporting factual data. 3. The RO should then review the record and readjudicate the claim, under 38 C.F.R. § 3.158(a), if applicable (i.e., dismissing the claim as abandoned). If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 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). _________________________________________________ George R. Senyk 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).