Citation Nr: 1340833 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-06 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic back disability. 2. Entitlement to service connection for a chronic foot disorder, to include a heel spur and metatarsalgia. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The claimant served on multiple periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) as a member of an artillery unit in the Army National Guard of the State of Florida from January 1991 to November 2000, including a period of ACDUTRA for initial entry training from June 1992 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim of entitlement to service connection for a chronic back disability and foot disorder (to include a heel spur and metatarsalgia). At this juncture, the Board notes that 38 U.S.C. § 101(2) defines the term "veteran" as meaning a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(24) defines the term "active military, naval, or air service" as including (A) active duty; (B) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (C) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died - (i) from an injury incurred or aggravated in the line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. Presently, the claimant is not service connected for any disabilities. As he only served on ACDUTRA and INACDUTRA during his membership in the Army National Guard of the State of Florida, he is therefore not currently a "veteran" within the meaning of the law. See 38 U.S.C.A. § 101(2), (24) (West 2002). Until such time that he is awarded service connection for a disability, he will be referred to in this appellate action as the "claimant" or the "appellant." In June 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, D.C., for additional evidentiary and procedural development, including providing the claimant with a VA examination so that nexus opinions could be obtained that addressed the issues on appeal. Following this development, the claims for VA compensation for a back and foot disability were readjudicated and denied in a June 2012 rating decision/supplemental statement of the case. The case was returned to the Board in July 2012 and the appellant now continues his appeal. For the reasons that will be discussed below, this appeal must be REMANDED once more to the RO/AMC. VA will notify the appellant if further action is required on his part. REMAND For the reasons discussed below, the Board must once again remand this case to the RO/AMC for further evidentiary and procedural development. The Board regrets the additional delay in adjudication of this claim imposed by this remand, but it is obligated to do so by VA's duty to assist the claimant and to ensure that the claimant's right to due process is protected. With regard to the claim for service connection for a chronic foot disorder, the appellant, who is representing himself in the present claim, has submitted podiatric treatment records dated from September 2008 to December 2011 from his private care provider. These were received by VA in July 2012, but were not considered in the first instance by the agency of original jurisdiction (AOJ) prior to the case being returned to the Board. The claims file does not include a waiver of review by the AOJ of these aforementioned records. A check of the appellant's claims file in the VBMS and Virtual VA electronic information database also indicates that no readjudication of the claim by the AOJ was conducted. Therefore, to safeguard the claimant's right to appellate due process and to ensure that his claim is not prejudiced, this matter must be remanded to the RO/AMC for a readjudication on the merits of the claim for VA compensation for a foot disorder (to include a heel spur and metatarsalgia). See 38 C.F.R. § 19.31 (2012); Bernard v. Brown, 4 Vet. App. 384 (1993). With regard to the claim for service connection for a chronic back disability, the claimant has expressly reported that he sustained a back injury in a motor vehicle accident that occurred in October 2000, during a period of ACDUTRA or INACDUTRA with the Army National Guard of the State of Florida. The VA clinician who examined the claimant in August 2011 noted the alleged history of motor vehicle accident at the beginning of his examination report, but thereafter failed to specifically address this history in the rationale and discussion of his nexus opinion (which determined that the claimant's back disability was not related to service because his service medical records did not reflect treatment for an ongoing back disability, but did not otherwise present any specific discussion as to whether or not the disability was related to a back injury sustained during the alleged motor vehicle accident in October 2000, assuming such to be true.) This opinion is therefore insufficient and inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion is furthermore in noncompliance with the instructions of the Board in its June 2011 remand. Stegall v. West, 11 Vet. App. 268 (1998). A remand for corrective action and an addendum opinion that rectifies this deficit is therefore warranted. The appellant's claims file should be referred to the VA clinician who examined the claimant in August 2011 (or, if this is not possible, than to an appropriate VA clinician) for an addendum nexus opinion, in which the clinician should state the likelihood that the appellant's low back disability is related to the motor vehicle accident that occurred during ACDUTRA or INACDUTRA. Before the above addendum is provided, however, additional evidentiary development must be undertaken. According to the claimant, he injured his back in a motor vehicle accident that occurred on October 8, 2000, on Highway 27 in Polk County, Florida, while he was a passenger in an Army truck that reportedly nearly overturned, throwing him to the floor of the vehicle and injure his back. The claimant stated that a report of this accident is among the records maintained by "Battery B, 2nd Battalion, 116 Field Artillery, Dade City, Florida 33523," and that a "Sergeant Orian Robinson" was a fellow National Guardsman who was present at and witnessed the accident. (See appellant's notice of disagreement dated September 2008 and a private chiropractor's treatment note dated in February 2001.) However, despite the claimant having provided exceptional details as to the date and location of the incident, the identity of a witness in the National Guard who was present during the incident, and the identity of the National Guard unit that reportedly archived the report of this accident, the claims file reflects that no effort has yet been undertaken by VA to attempt to obtain any records relating to this alleged motor vehicle accident, which might corroborate the claimant's assertion that his current back disability is directly related to an injury that was sustained during ACDUTRA or INACDUTRA. Such corroborative records, if obtained, could establish the claimant's involvement in a motor vehicle accident that occurred in the line of duty, coincident to a period of ACDUTRA or INACDUTRA, and would be evidence that is very probative of his claim for VA compensation for a back disability. Therefore, VA has a duty to assist the claimant in attempting to obtain these records for association into the record. See Murphy v. Derwinski, 1 vet. App. 78, 82 (1990): The VA Secretary has a statutory duty to assist a claimant by securing any relevant VA, military, or other government records. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The pertinent clinical evidence is current through December 2011. The RO should therefore obtain the names and addresses of all medical care providers, both VA and non-VA, that treated the claimant for complaints relating to his feet and low back from December 2011 to the present. After obtaining the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified as relevant by the claimant, a notation to that effect should be inserted in the file. The claimant is to be notified of unsuccessful efforts in this regard, to provide the claimant with the opportunity to obtain and submit those records for VA review. 2. The RO/AMC should contact the appropriate sources to obtain copies of records maintained by Battery B, 2nd Battalion, 116 Field Artillery, in Dade City, Florida 33523, which relate to a motor vehicle accident involving a truck operated by the Army National Guard that occurred on October 8, 2000, on Highway 27 in Polk County, Florida, including any line of duty determinations, in relevant. The RO/AMC should also conduct the appropriate measures to solicit or obtain a statement from "Sergeant Orian Robinson" regarding the October 2000 motor vehicle accident discussed above, as the appellant identifies him as a fellow National Guardsman who was present at and witnessed the accident. If any of the above records or witness statements relating to this alleged motor vehicle accident cannot be obtained, the RO/AMC should prepare a memorandum stating the efforts it undertook to obtain them and the reasons why these records and/or witness statements could not be obtained. A copy of this memorandum should be associated with the appellant's claims file. The claimant is to be notified of unsuccessful efforts in this regard, to provide the claimant with the opportunity to obtain and submit those records and/or witness statements for VA review. 3. To the extent possible, the appellant's claims file should be provided to the VA examiner who conducted the August 2011 medical examination or to an appropriate clinician to obtain an addendum to this examination report. The appellant's claims file must be made available to the opining clinician, who must state in his/her report that the appellant's claims file was reviewed in conjunction with this addendum. Thereafter, the clinician must provide an opinion, presented in the context of the medical record, with complete supportive rationales, addressing the following question: Assuming as true that the appellant sustained a low back injury in a motor vehicle accident occurring in October 2000, is at least as likely as not (a 50 percent probability or greater) that the appellant's diagnosed back disability is consistent with a history of such a back injury? A rationale for the requested opinion shall be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide an opinion is the result of a need for additional information or that he /she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. After the above opinion has been obtained, the RO/AMC shall readjudicate the appellant's claims of entitlement to service connection for a chronic back disability and foot disorder (to include a heel spur and metatarsalgia) in consideration of the additional evidence obtained. If any benefit sought on appeal is not granted, the appellant should be provided with a supplemental statement of the case and provided with sufficient opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Board intimates no opinion as to the outcome in this case by the action taken herein. The appellant 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 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. 2013). _________________________________________________ Michael J. Skaltsounis Acting 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).