Citation Nr: 1342347 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 06-25 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for ankylosing spondylosis. 2. Entitlement to service connection for arthritis of the spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from December 1967 to July 1969. He served in the Army National Guard of New York from May 1984 to May 1985 and had additional unverified Reserve service. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for spondylosis and arthritis, as well as a skin disorder and diabetes mellitus, type II, including as due to herbicide exposure. In August 2010, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. In a May 2013 decision, the Board denied the Veteran's claims of service connection for a skin disorder and diabetes mellitus, type II, including as due to exposure to herbicides. At that time, and again in July 20103, the Board remanded his remaining claims to the RO via the AMC for further development. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND Unfortunately, a review of the evidence in this case reveals that the RO/AMC did not comply with the Board's July 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). While some of the ordered development was accomplished, such as resending the May 2013 supplemental statement of the case (SSOC) and AMC correspondence to the Veteran at his new mailing address, obtaining records of the Veteran's VA medical treatment since April 2006, and obtaining an opinion from the January 2012 VA examiner or another similarly qualified physician, other action requested by the Board was not completed. Specifically, the Board also directed that the January 2012 VA examiner (or another similarly qualified physician) should render an opinion as to "whether it is at least as likely as not that the Veteran's ankylosing spondylosis manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury." The examiner was also requested to render an opinion as to "whether it is at least as likely as not that the Veteran's arthritis of the lumbar and/or cervical spine (assuming that these disabilities are noted in the medical evidence of record) manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury." However, in this case, the VA opinion rendered on October 9, 2013 by a physician only addressed the question of whether it was at least as likely as not that the Veteran's ankylosing spondylitis manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury. The physician-examiner did not address the question of whether it was at least as likely as not that the Veteran's arthritis of the lumbar and/or cervical spine manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury, as directed by the Board. Id. Thus, remand is necessary to obtain a further opinion. In light of these matters being remanded, recent medical records regarding the Veteran's treatment at the VA Medical Center (VAMC) in Miami, Florida, and at the Broward County VA Outpatient Clinic (OPC), dated since October 2012 should also be obtained. Finally, it appears that the Veteran may be in receipt of Social Security Administration (SSA) disability benefits. In a March 2005 written statement, he advised VA that he was in receipt of SSA disability benefits because of his back disability and submitted a copy of a Form SSA-1099-Social Security Benefit for 2004. In April 2005, he submitted a copy of a form he apparently completed in September 1993 in conjunction with his SSA disability application, noting private medical treatment for his back disorder. However, to date, a complete copy of the Veteran's SSA records have not been associated with the claims file. In this regard, the Board notes that the possibility that SSA records could contain evidence relevant to the claims on appeal cannot be foreclosed absent a review of those records. As such, the administrative decision and records considered by the SSA in its award of disability benefits must be obtained prior to consideration of the Veteran's claims. 38 C.F.R. § 3.159(c)(2) (2013); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain updated treatment records from the Miami VAMC and Broward County OPC, dated from October 2012, and from any additional VA and non-VA medical provider identified by the Veteran. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 2. Contact the SSA and request a copy of the administrative decision and all records considered in conjunction with its award of SSA disability benefits to the Veteran and any subsequent disability determinations regarding him. 3. After completion of the above-requested development, return the Veteran's claim file to the physician who provided the October 9, 2013 opinion at the Broward County VA OPC. After reviewing the claims file, including the service treatment records (noting injury to the Veteran's shoulder in February 1968), the previous examination reports, and other medical evidence of record, the examiner should render an opinion as to: whether it is at least as likely as not that the Veteran's arthritis of the lumbar and/or cervical spine (assuming that these disabilities are noted in the medical evidence of record) manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury. The examiner should provide reasons for all opinions rendered and should specifically consider and discuss lay statements provided by the Veteran in support of this claim. If that physician is no longer available, forward the Veteran's claims file, along with a copy of this and the May 2013 remand to another similarly qualified physician. A clinical evaluation should be scheduled only if deemed necessary by the examiner. After reviewing the claims file, including the service treatment records (noting injury to the Veteran's shoulder in February 1968), the previous examination reports, and other medical evidence of record, the examiner should render an opinion as to: a) whether it is at least as likely as not that the Veteran's ankylosing spondylosis manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury; and b) whether it is at least as likely as not that the Veteran's arthritis of the lumbar and/or cervical spine (assuming that these disabilities are noted in the medical evidence of record) manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury. The examiner should provide reasons for all opinions rendered and should specifically consider and discuss lay statements provided by the Veteran in support of this claim. 4. The RO/AMC should review the examination report to ensure that it contains the information, opinion, and reasons requested in this remand. 5. Then, the AMC/RO should review the record in light of the new evidence obtained. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a SSOC and an opportunity to respond. Then, return the case to the Board for appellate review. The Veteran and his representative have 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. 2012). _________________________________________________ M.W. KREINDLER 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).