Citation Nr: 1340586 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 13-01 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a low back disorder, manifested by pain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from May 31, 1972 to August 4, 1972, a period of 66 days and he was discharged under honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran initiated an appeal by filing a notice of disagreement (NOD) in October 2010, and after a December 2012 statement of the case (SOC) he perfected the appeal by filing VA Form 9, Appeal to the Board of Veterans' Appeals, in January 2013. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal a review of which does not reveal any additional documents pertinent to the present appeal with the exception of electronic VA medical (CAPRI) records. The Veteran was notified by letter in May 2010 that his claim for VA pension benefits was denied because he had less than 90 days of active service. He has not appealed that decision. 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. REMAND Unfortunately, the Board's review of the claims file reveals that further development in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on the matter remaining on appeal. The Veteran is not service-connected for any disability. However, he does have a right knee disability, a total left knee replacement, diabetes, and hypertension. A September 2010 Formal Finding concluded that service treatment records (STRs) were unavailable. Subsequently, it was observed that he had enlisted in the Navy when under aged and, also, under his brother's name. A search for records under that name revealed only the service entrance examination report and the report of the adjunct medical history questionnaire were obtained. These show that (as confirmed by personnel records) that the Veteran enlisted under another name. These records were negative with respect to low back disability. Also, the service personnel records show that he was discharged from service by reason of being a minor. In the Veteran's original service connection claim, VA Form 21-526, in March 2010 he reported having injured his back, herniating a disc, by operating a buffing machine in June 1972 and he had had back pain since then. He had received Workers compensation in 1992. He was receiving Social Security Administration (SSA) benefits. CAPRI records show that in March 2008 an MRI revealed an L5-S1 central disc herniation. The Veteran was told that one leg might be shorter than the other due to past knee surgery, which could be adding to his back and leg pain. Another clinical notation in March 2008 noted that he reported having injured his low back in the 1980s when, while an "EMT" passenger in Massachusetts, he had a hard jolt. At that time he did not immediately feel back pain, but shortly thereafter, when he tried to lift something, he had knife-like back pain with left leg weakness. He had never had problems with his back prior to this. Two months after this injury he was terminated from his job and was on Workers Compensation, and his back did not get better. He had not worked since this injury. Yet another March 2008 clinical record noted that he had had a lifting injury in the late 1990s and was treated for a sprain. CAPRI records show that in April 2008 it was reported that facet mediated pain, myofascial pain, and leg length inequality were suspected and these might aggravate the Veteran's back pain. In that same month it was noted that he had chronic low back pain, and chronic pain syndrome with extensive narcotic use in past. He felt that he had been singled out due to his narcotic usage. However, he had gone from practice to practice to maintain narcotic prescription and this generally resulted in his being discharged for alleged narcotic contract violations which he would deny. After his left knee replacement he had developed pain the right hip and back but thereafter he was in a motor vehicle accident (MVA) which aggravated things further, particularly with difficulty at L4-5 and L5-S1, according to the Veteran. Records of the Ashland Health Center show that in 2009 the Veteran had multiple back injuries or exacerbations of a prior back injury. In December 2009 he reported that his back pain began a number of years ago when he fell down some stairs and was later in a vehicular accident. Social Security Administration (SSA) records include a February 1994 Administrative Law Judge (ALJ) decision awarding the Veteran SSA disability benefits. That decision noted that a private evaluation found that the Veteran had a severe somatoform disorder, and that he had been awarded Worker's Compensation in the past. In an undated statement the Veteran reported that he had received Worker's Compensation from a back injury while working as an Emergency Medical Technician in Massachusetts. However, records pertaining to this are not on file, but should be obtained. Thus, the Veteran should be contacted to provide as much information as possible concerning such award, including the claim number. The Board notes that if service treatment records (STRs) are unavailable, the VA's duty to assist is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Here, it is not certain that the STRs are now incomplete, since it is not clear whether the Veteran was afforded an examination for service separation. Moreover, he has not alleged that he was seen or treated for low back disability during service. Rather, he had stated that after his injured his back during service he had complained of it but had been told to "suck it up." In light of this, he should be afforded a VA examination to determine the nature, etiology, and time of onset of any current low back disability. See Generally McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, to ensure that all due process requirements are met, the RO\AMC should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). It should be specifically requested that the Veteran provide authorization to obtain any outstanding private medical records, including those from any private physician(s) who had treated or evaluated him as to the claimed low back disability. Lastly, the Board provides some caution to the Veteran inasmuch as he has not been an accurate historian. For example, he has variously reported that he received Worker's compensation for a back injury sustained as an Emergency Medical Technician in the 1980s, but elsewhere reported it was in 1992. He has also indicated that he cannot recall all of the times and places of treatment for low back disability. Thus, for the sake of attempting to assist him in developing evidence to substantiate his claims, he should attempt to provide as much detailed information as to relevant times, sources, and places of either treatment or filing a Worker's Compensation claim. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he provide information and, if necessary, authorization, to enable the RO\AMC to obtain any additional evidence pertinent to the claim for service connection for low back disability and to a TDIU rating that is not currently of record. Explain the type of evidence that is the Veteran's ultimate responsibility to submit. Also, request that the Veteran provide the specific date of the low back injury which resulted in his receiving Worker's Compensation (apparently in the 1980s) in Massachusetts, as well as records pertaining to his other postservice vehicular accident. He should provide as much detail as possible, including the claim number of the Worker's Compensation claim, any medical records in his possession pertaining thereto, and a copy of any award or other documentation of the ultimate outcome of the Worker's Compensation claim. If the Veteran provides the Worker's Compensation claim number, the appropriate steps should be taken to obtain copies of those records, which should be associated with the claim file. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. The RO\AMC should assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses should be associated with the claim file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe any further actions(s) to be taken. The records obtained should be associated with the claim file. 3. After all records and/or responses from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to be examined by an appropriate medical personnel for the purpose of determining the nature, etiology, and onset of his current low back disability. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any current low back disability that the Veteran now has is related to military service. Please note that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The term "more likely" and "at least as likely" support the contended causal relationship; the term "less likely" weighs against the contented causal relationship. Please answer the questions posed with use of the terms "at least as likely", "more likely", or "less likely." The examiner should be asked whether there is any medical reason to accept or reject the proposition that if the Veteran had had a 1972 low back injury during service, such injury could have lead to his current condition. A rationale for any opinion offered should be provided. If an opinion cannot be rendered without restoring to mere speculation, the examiner must explain why such is the case. 4. To help avoid future remand, the RO\AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining any further opinion, if appropriate), the RO\AMC should adjudicate the claims in light of all pertinent evidence (particularly, that added to the claims file since the last adjudication of the claims). 6. If the benefits sought remain denied, furnish the Veteran a Supplemental Statement of the Case that includes clear reasons and bases for the determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).