Citation Nr: 1339559 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 09-50 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Michael D.J. Eisenberg, Attorney at Law ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to August 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for a low back disability. In July 2009, an Informal Conference between a Decision Review Officer (DRO) and the Veteran's representative was held, and the report of this conference is associated with the claims folder. In April 2011, the Veteran testified at a hearing at VA Central Office in Washington, D.C., before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony has been associated with the Veteran's claims folder. In May 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development, to include providing corrective VCAA notice; obtaining information regarding, and records from, Dr. C; and scheduling the Veteran for a VA examination with opinion. The record reflects that, although a notice letter was given to the Veteran in November 2011, the correspondence provided the criteria to support a new and material evidence claim. Such an issue is not before the Board. As stated in the prior remand, the issue on appeal is entitlement to service connection for a low back disability. The Board's prior remand specifically requested a corrective notice letter pertaining to the "service connection issue on appeal." Also in the May 2011 remand, the Veteran was asked to provide information regarding Dr. C., in response, he submitted several private treatment records. In addition, he underwent a VA examination in October 2012 that included a medical opinion. The Board concludes that there was substantial compliance with all remand directives of May 2011-except for the instructions with regard to issuing to the Veteran a corrective notice letter. Stegall v. West, 11 Vet. App. 268 (1998). This deficiency will be addressed in the following remand. Evidence that was recently associated with the claims folder which was apparently submitted by the Veteran's representative in January 2013. In that regard, the Board notes that a letter from the Veteran's representative was date stamped by the RO as received on January 10, 2013. This letter from the Veteran's representative, dated in January 2013, was issued in response to the SSOC issued by the RO in December 2012. After this evidence was received by the RO on January 10, 2013, it was apparently sent directly to the Board, without being reviewed by the RO/agency of original jurisdiction (AOJ), because on January 16, 2013, the RO completed a VA Form 8, Certification of Appeal and certified the claim for service connection for a low back disability to the Board. The Board apparently received this letter on January 14, 2013. Thereafter, in April 2013, the Board notified the Veteran that his claims folder had been received at the Board and that his appeal had been returned to the Board's docket. Included with the representative's letter was a letter from a fellow service member, S.K.B., dated in December 2012, describing how he was a medic and had treated the Veteran for low back pain during active service. Thus, this evidence may be pertinent to the issue on appeal. Neither the Veteran nor his representative has indicated whether this evidence could be considered by the Board in the first instance. Without a waiver of such consideration, the AOJ/RO must consider this additional evidence (which was apparently received before the case was certified to the Board) and then readjudicate the claim. 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted above, the Board has received evidence (a letter from a S.K.B. dated in December 2012), from the Veteran's representative, which appears to be pertinent to the issue on appeal. As this evidence was received prior to the RO's certification of the Veteran's appeal to the Board, without a waiver of initial review by the AOJ/RO, the AOJ/RO must consider this additional evidence and then readjudicate the claim. 38 C.F.R. § 20.1304 (2013). As noted in the prior remand, the Veteran contends that he currently suffers from low back problems as a result of injuries he sustained in service. His DD Form 214 reflects that his military occupational specialty (MOS) was that of an Infantryman. Based on testimony provided by the Veteran's representative, an Infantryman's responsibilities involve enduring extreme conditions such as participating in long arduous marches, setting up machine guns, and partaking in parachute jumps. At the hearing, the Veteran credibly testified in outlining some of the in-service events that he believes contributed to, and further aggravated, his back pain. Specifically, while participating in the long road marches, some of his subordinates would get tired and fall behind, and as their leader, the only way he could help them continue forward so to complete the mission as a team, was to help them carry their equipment. The Veteran testified that he not only carried his own equipment, which weighed at least 100 pounds, during these marches, but he also helped his subordinates carry a portion of their own equipment, which was an additional 40-60 pounds of weight. In addition, the Veteran recalled one particular occasion in which he carried rucksacks belonging to several of his serviceman for over 20 miles. Based on the Veteran's testimony, he not only experienced back pain after these in-service occurrences but he has continued to experience problems with his back since his separation from service. When asked to describe his symptoms, he testified that he experiences pain in his lower back pain on a daily basis, is limited in his ability to move, and must restrict his activities as a result of his back pain. Although the Veteran has not alleged that he engaged in combat with the enemy in a period of war [such that lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation, under 38 U.S.C.A. § 1154(b)], the Board has nonetheless accepted the Veteran's statements as to the conditions of his service, that he had low back pain in service, and that he has had low back pain since service, as he is competent to report such. Further, because this letter from a fellow service member, S.K.B., describes how S.K.B. was a medic in service and had treated the Veteran for low back pain on two occasions during service, this letter should be sent to the VA examiner who rendered the opinion in October 2012 for consideration and a supplementary medical opinion. Further, in the letter dated in January 2013, the Veteran's representative also alleged that "neither the Veteran nor his counsel" had received a copy of his medical examination or a copy of the transcript from his VACO hearing. Thus, on remand, copies of these documents should be sent to the Veteran and his representative. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a corrective Veterans Claims Assistance Act of 2000 notice letter pertaining to the issue of entitlement to service connection for a low back disability. This correspondence should include the criteria necessary to support a service connection claim. 2. Provide to the Veteran and his representative copies of the transcript of the VACO hearing in April 2011 and the October 2012 VA DBQ examination. 3. Forward the claims folder to the VA examiner who conducted the October 2012 VA DBQ examination for a supplemental opinion. Request that the examiner review the claims folder again, to specifically include the letter from a fellow service member, S.K.B., dated in December 2012, describing how he was a medic and had treated the Veteran for low back pain during active service, and request that the examiner note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to an appropriate medical professional. In any event, either the original October 2012 examiner, or a new medical professional is requested to address the following: Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that any of the Veteran's low back disabilities had its/their onset in service or otherwise is/are causally or etiologically related to a disease or injury incurred in active service? In answering this question, the examiner should specifically include a discussion as to whether any of the diagnosed condition(s) is/are consistent with the Veteran's assertions that he hurt his back while performing his duties as an infantryman--i.e., carrying heavy equipment during the long road marches in service-as well as his complaints of continuing back pain since service, and the medic's statement that he treated the Veteran with medicine for low back pain on two occasions in service. The examiner should provide supporting rationale for all opinions rendered. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). He has the right to submit additional evidence and argument on the matter that 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 (Court) 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). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).