Citation Nr: 1415899 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 10-47 858 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a disability of the cervical spine (neck disability). 2. Entitlement to service connection for a disability of the lumbar spine (back disability). 3. Entitlement to service connection for disability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The appellant served with the Florida Army National Guard. In this capacity, he had an initial period of active duty for training from January 1976 to April 1976, followed by additional periods of active duty for training, to include a July 1992 field exercise and a June 1993 exercise. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 RO decision. The Board has reviewed the appellant's physical claims file and also evidence available in his VA electronic files. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action on his part is required. REMAND The appellant contends that all three disabilities at issue were sustained during a motor vehicle accident which occurred during a period of active duty for training in June 1993. Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. See 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Active military, naval, or air service also includes any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Inactive duty training means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Also see Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Generally, service connection may be granted for any disability resulting from injury suffered in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. 38 C.F.R. § 3.303. The appellant contends his currently-shown back, neck, and right knee disabilities stem from injuries incurred during a June 1993 traffic accident. According to the report of the accident, the appellant was driving a Humvee southbound on Route I-95 in Florida, near the Golden Glades Interchange. Traffic was congested and came to a halt. About five seconds after the appellant halted his vehicle, it was rear-ended by a commercial bus. The impact then caused his Humvee to hit the vehicle in front. The appellant was taken for medical care to the VA Hospital in Miami. The report of this treatment reflects that he complained of pain in his left upper arm, right elbow, both knees, and his rib area. A medical opinion that the injury was incurred in the line of duty, but that only temporary disability may result, and that the injury was not likely to result in a claim against the government for future medical care was rendered. He was given Motrin and instructed to rest for three days before returning to duty. Routine medical examinations conducted by the National Guard in August 1993 and in November 1995 are negative for any history of injury in June 1993 and also negative for any abnormal clinical findings involving the appellant's back, neck, or right knee. In his December 2008 application for compensation, the appellant reported that he had been treated for all three disabilities by a Dr. Enrique Escobar in Cagues, Puerto Rico. He does not identify when such treatment occurred. The duty to assist the appellant in developing evidence to support his claim for service connection includes obtaining, or attempting to obtain all relevant evidence pertaining to the disabilities at issue. It does not appear that any attempt has been made to obtain records from Dr. Escobar. Therefore, prior to further review, these records should be obtained. 38 C.F.R. § 3.159(c)(1). The recent medical evidence of record includes a February 2009 VA treatment record from the VA's Caribbean Healthcare System in Puerto Rico, showing that the appellant was establishing medical care with that facility. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, these records should be updated for the claims file. In this regard, the Veteran can obtain these records himself in order to expedite his case and submit them to the VA (along with a written statement that "all pertinent records have been obtained"). Accordingly, the case is REMANDED for the following action: 1. After securing the necessary release, the RO should make reasonable efforts, as defined by38 C.F.R. § 3.159(c)(1) to obtain records reflecting the medical care provided to the appellant by Dr. Enrique Escobar in Cagues, Puerto Rico. 2. The RO should obtain all records of VA medical treatment afforded to the appellant by the VA Caribbean Healthcare System subsequent to November 2010 for inclusion in the claims file. 3. After the development requested above has been completed, the RO should again review the record. Any additional evidentiary development which may become apparent should be accomplished. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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). _________________________________________________ JOHN J. CROWLEY 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).