Citation Nr: 1343353 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-37 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lower back disability to include arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the United States Air Force from February 1970 to February 1978, and reserve service from 1978 to 1998 with the Air Force. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), located in Houston, Texas. The appellant provided testimony at a September 2013 hearing before the undersigned Veterans Law Judge (VLJ) sitting in Houston. A hearing transcript has been associated with the claims folder. 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 The appellant seeks service connection for a lower back disability. He maintains that while he was on active duty in the United States Air Force from February 1970 to February 1978, he was diagnosed with a low back disorder. Per documents provided by the appellant, he was diagnosed with "spina bifida occulta of L5 and possibly S1" in December 1974. After further examination and review, the appellant was given a waiver by the Strategic Air Command Surgeon (General's) Office so that he would not be classified as physically unfit for flight status, and allowed to continue to fly airplanes for the US Air Force. He continued as an Air Force pilot until 1978 when he was released from active duty. The record reflects that for the next twenty years, the appellant was assigned to an Air Force reserve unit. He retired from that unit in 1998. The appellant has averred that after he was released from active duty in 1978, he continued to have problems with his lower back. He has maintained that the discomfort and pain that he originally experienced while on active duty developed into a more serious disability of the lower back to include arthritis. The appellant has also indicated that after he was released from active duty, even though he had a back condition, he worked as a commercial pilot. In conjunction with his claim for benefits, the appellant underwent a VA examination in March 2013. Upon completion of the examination, the physician's assistant found that even though he had been diagnosed in the Air Force as having spina bifida occulta, such a diagnosis was in error since it was not shown on more recent films. The physician's assistant further wrote that while the appellant may have suffered from back strain in service, there was no evidence suggesting that the current back disorder was related to service or any incidents therein. The examiner did not provide any additional comments with respect to his suppositions or hypotheses. 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 (1993). Further regarding the duty to assist, the 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 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). Hence, it is the conclusion of the Board that because there appears to be a lack of evidence as to whether the appellant's current back disability is related to symptoms he experienced while on active duty, or whether the appellant now suffers from a congenital disorder that began while the appellant was on active duty, the claim should be returned to the AMC so that additional development may occur. Additionally, as noted above, after the appellant served on active duty, he was a commercial pilot. In order to be qualified as a certified commercial pilot, the appellant would have been required to meet Federal Aviation Administration (FAA) requirements. Part of those requirements involve undergoing a physical examination prior to certification or licensure. Once the initial FAA certification had been obtained, over the years, the appellant would have had to take periodic physical examinations in order to keep his flight status and license. A review of the claims file and electronic records does not reflect that inquiries to the FAA for these records have been accomplished. Moreover, none of the records that may be in the possession of the FAA, a federal agency, have been requested or obtained. Because these records have not been obtained and since they may shed some light on the appellant's overall medical health for the period extending from 1978 to the present, a period in which there are scant medical records in the claims file, it is the opinion of the Board that during the remand process, attempts should be made to obtain these records. These possession of these records will not only provide valuable insight as to whether the appellant continued to experience some type of back condition since his release from active duty, they will also help the VA construct a time line as to the increase in severity of symptoms as claimed by the appellant. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims, the case is remanded to the AMC for the following development: 1. The AMC should contact the appellant and ask that he identify all sources of medical treatment for his low back since 1978, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2013). 2. The AMC should contact the Federal Aviation Administration (FAA) or any other appropriate government repository and request any information it may have concerning the appellant, including any prior FAA certifications, medical evaluations used to determine such certifications, and any reason why FAA certification may have been revoked. All records obtained should be included in the claims folder for further review. If the AMC cannot locate any Federal records requested therein, the AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain these government records would be futile. If requests to the FAA are not successful, the AMC should inform the appellant of any nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2013). 3. The AMC should arrange for another orthopedic examination of the appellant. The claims folder, including any documents obtained as a result of this Remand, should be made available to the examiner for review before the examination, and the examination must be accomplished by an orthopod. The examination report should consider all findings necessary to evaluate the claim and the examiner is asked to indicate that he or she has reviewed the claims folder. Moreover, the examiner must specifically note in the examination that he/she has reviewed all of the medical records and all FAA records obtained prior to examining the appellant. With respect to the inservice diagnosed spina bifida occulta, the examiner must specifically make a determination as to whether the appellant now suffers from spina bifida at present or at any time during the claims period, reconciling such finding with other medical evidence of record. If it is determined that the appellant does not suffer from spina bifida even though the condition was previously diagnosed, the examiner must provide a detailed analysis as to why such a condition was erroneously diagnosed. If it is determined that the appellant does, in fact, suffer from spina bifida, and that the appellant was correctly diagnosed with this congenital disorder while on active duty, the examiner must indicate whether the condition was aggravated by service. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. Finally, the examiner should provide an opinion as to whether any lower back disorder from which the appellant now suffers therefrom was caused by or the result of the appellant's military service. The examiner must provide a complete rationale for all opinions expressed. If he or she cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusion. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. 4. The AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the deficient report must be returned for corrective action. 38 C.F.R. § 4.2 (2013); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AMC should readjudicate the issue on appeal. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2013) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2013). _________________________________________________ Eric S. Leboff 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).