Citation Nr: 1339995 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-06 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1958 to May 1960. This matter is on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for a cervical spine disorder and continued a denial of a lower back disorder. The Board reopened and remanded the lower back disorder and cervical spine disorder to the Appeals Management Center (AMC) in April 2012 for further development and adjudicative action. In a November 2012 Supplement Statement of the Case (SSOC), the AMC continued the denial of both the claims. The case has now been returned to the Board for further appellate review. 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 In its April 2012 Remand, the Board instructed the RO/AMC to obtain any outstanding service hospital records, and any negative response should be noted in the claim's file. The record indicates RO/AMC dispatched a letter in April 2012 to the Veteran requesting information of where and when he was treated in service. The Veteran did not respond to the RO/AMC April 2012 letter. No further action was taken by the RO/AMC. A review of the record shows that the Veteran previously identified the facility where he alleges that he received inpatient and outpatient treatment for a spine injury. Specifically, in September 1998, he indicated that he received treatment for his back through the Ft. Lee medical center. The record does not indicate that any action was taken to obtain records from that facility. Put another way, VA had the necessary information to request the alleged missing information in its possession, and the Veteran's failure to respond to the April 2012 letter did not alleviate the Board's Remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Compliance with the Board's remand instructions is not a discretionary matter. It is important to note that the military branches of service define service treatment records (STRs) as outpatient treatment records and discharge summaries of inpatient care only. STRs do not include full inpatient treatment records. See VBA Fast letter No. 13-09 (Apr. 26, 2013). Further, while on Remand, and as the Veteran continues to seek VA medical care, his VA records should be updated for the file. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes the Veteran's VA treatment records have been updated until July 2012. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding service hospital records. In particular, a request should be made for inpatient and outpatient records from the Ft. Lee medical center from July 1958 to September 1960. All requests and responses should be documented and associated with the claims file. 2. The RO should obtain all records of VA medical treatment afforded to the Veteran since July 2012 by the VAMC Mountain Home and all related facilities for inclusion in the claims file. 3. If, and only if, the RO /AMC receives outstanding service hospital records that pertain to either the Veteran's claimed low back disorder or cervical spine disorder, the RO/AMC should obtain an addendum opinion from the examiner who performed the July 2012 VA examination. If that examiner is unavailable, the file should be directed to another examiner with similar training to evaluate the nature and etiology of the Veteran's low back disorder and cervical spine disorder in light of this new evidence. An additional physical examination should only be scheduled if the examiner finds that such is needed. A review of the claims file and all electronic records must be made. This review must be noted in the resulting opinion. An opinion must made on whether it as likely as not (a 50 percent probability or greater) that the low back disorder and/or cervical spine disorder had its onset in service or is otherwise etiologically related to the Veteran's active service. Consideration must be given to the Veteran's contention that he injured his back and neck in service and has been experiencing pain since that time. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question(s). 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ MICHAEL A. HERMAN 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).