Citation Nr: 1340032 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 03-21 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. (The issues of entitlement to service connection for a right foot disability, a left eye disability, a cardiac disability, hypertension, and a skin disease, entitlement to an increased rating for posttraumatic stress disorder, and entitlement to a total disability rating based on individual unemployability are the subject of a separate decision by the Board.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and M.S. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter initially came before the Board of Veterans' Appeals (Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to service connection for a low back disability. In January 2005, the Veteran testified at a hearing before a Decision Review Officer (DRO) and a transcript of that hearing has been associated with his claims folder. The Veteran testified before a Veterans Law Judge (VLJ) at an April 2006 hearing at the RO (Travel Board hearing). A transcript of the hearing has been associated with his claims folder. The VLJ who held the hearing is a signatory to this decision. In August 2006, the Board denied the claim of service connection for a low back disability. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In May 2008, the Court set aside the Board's August 2006 decision and remanded the case for readjudication in compliance with directives specified in an April 2008 Joint Motion filed by counsel for the Veteran and VA. In October 2008 and April 2011, the Board remanded this matter for further development in compliance with the Joint Motion. The Veteran testified before an Acting Veterans Law Judge (AVLJ) at an April 2013 Travel Board hearing. The AVLJ who held that hearing is also a signatory to this decision. A VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a) (West 2002). Thus, when a veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, as they have in this case, a third VLJ is assigned to the panel after the second Board hearing has been held. The Court has interpreted 38 C.F.R. § 20.707 as requiring that a veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). As stated above, the Veteran testified at two hearings before a VLJ and an AVLJ concerning the issue listed above. Thus, a third VLJ will be assigned to the panel deciding this appeal. In a letter dated in August 2013, the Veteran was afforded the opportunity for a hearing before the third member of the decision panel. He subsequently responded that he did not want an additional hearing. Therefore, there is no hearing request pending at this time and the Board has complied with the requirements set forth in Arneson. See Id; 38 C.F.R. § 20.700(a) (2013). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. 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 Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Veteran contends that he injured his back in service while performing heavy lifting of bridge parts in Vietnam. He reportedly did not seek any treatment for his back in service and first began receiving treatment following service in approximately 1967. The records of such treatment in 1967 are currently unavailable. VA treatment records reflect that he was prescribed medication for back problems (i.e. naproxen) as early as April 1996. He claims that he has experienced back pain ever since service. However, there is some evidence to the contrary. For example, his March 1966 separation examination was normal other than for impaired vision and he reported on a March 1966 report of medical history completed for purposes of separation from service that he was neither experiencing, nor had he ever experienced, any recurrent back pain. In addition to the reported in-service back injury, there is also evidence of a post-service back injury. A September 2004 "Employer's First Report of Injury or Illness" indicates that the Veteran began to sit in a chair at work when the chair rolled out from under him and caused him to fall to the floor and injure his lower back. The Veteran was afforded a VA examination in June 2009 to assess the nature and etiology of his claimed low back disability. He was diagnosed as having lumbar degenerative disc disease L3-4, L4-5, and L5-S1 and degenerative joint disease. The physician assistant who conducted the examination opined that the Veteran's current complaints of low back pain were not likely ("less likely than not") caused by service. He reasoned that the Veteran's service treatment records were silent on the issue of low back pain, that his separation examination did not show any complaint of low back pain, and that there was no notation of any back condition during the physical examination. The Veteran did not seek any care for his low back until approximately 2000, which was approximately 36 years after his discharge from service. It was likely ("more likely than not") that his current low back disability was related to age and attrition. The June 2009 opinion is insufficient because it is based on an inaccurate history. Although the examiner reasoned that the Veteran did not seek any care for his low back until approximately 2000, VA medication notes reflect that he was prescribed naproxen for his back as early as April 1996. As the June 2009 opinion is based on an inaccurate history, it is of limited probative value. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Additionally, the June 2009 opinion was entirely based on a lack of objective clinical evidence of treatment for back problems in service or for many years after service. The examiner did not acknowledge or consider the Veteran's reported back injury in service (which was described by a fellow service member in a February 2008 statement), his report of receiving post-service back treatment as early as 1967, or his reports of a continuity of back symptomatology in the years since service. In this regard, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the Veteran's claims file, including an April 2009 letter from the Social Security Administration (SSA), indicates that he was granted SSA disability benefits for an unspecified disability. The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Furthermore, during the April 2013 hearing, the Veteran reported that he continued to receive treatment for his back disability at the VA Medical Center in Dallas, Texas (VAMC Dallas). The most recent VA treatment records in the claims file and among the Veteran's paperless records in the Virtual VA system are from the VA North Texas Health Care System and are dated to November 2011. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a low back disability from the VA North Texas Health Care System dated from November 2011 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any evidence received from the SSA and any additional treatment records, schedule the Veteran for a VA examination to determine the etiology of his current low back disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current low back disability identified (i.e. any low back disability diagnosed since October 2002), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current low back disability had its onset in service, had its onset in the year immediately following service (in the case of any diagnosed arthritis), is related to the Veteran's reported back injury in service, or is otherwise related to a disease or injury in service? In formulating the above opinions, the examiner must acknowledge and comment on all low back disabilities diagnosed since October 2002, the Veteran's reported back injury in service, his post-service back injury in September 2004, and his reports of a continuity of symptomatology in the years since service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report a back injury in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The medical reasons for accepting or rejecting the Veteran's history and reports of a continuity of symptomatology since service shall be set forth in detail. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 4. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If the benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran 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 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). ______________________________ ______________________________ THOMAS H. O'SHAY MILO H. HAWLEY Acting Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ______________________________ JAMES L. MARCH 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).