Citation Nr: 1524976 Decision Date: 06/11/15 Archive Date: 06/19/15 DOCKET NO. 11-26 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Service connection for mild degenerative arthritis of the lumbar spine (lumbar spine disability). 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, R.J., and Y.B. ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from May 1979 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in April 2015. The Board notes the claim for service connection for a lumbar spine disability was previously denied in a May 2008 rating decision. However, the Veteran submitted another claim and additional evidence within the appeal period, in the form of a buddy statement from his ex-wife attesting to his back complaints during and after service. As such, the Board finds that consideration of the claim on the merits is warranted. 38 C.F.R. § 3.156(b). This appeal was processed using the Veteran's Benefits Management System (VBMS). In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. For the reasons explained below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board notes that additional development is necessary before further appellate review can be accomplished. The Veteran's representative at the hearing noted that additional pertinent records need to be obtained, and requested the VA's assistance in obtaining these records. In statements and testimony, the Veteran contends that sometime from 1980 to 1981, he and servicemen Vernon Moss and Charles Jackson were transporting a serviceman's spouse by military ambulance from their base in Bad Hersfeld, Germany, to the Frankfurt Army Regional Medical Center (97th General Hospital) at a high speed due to the severity of the woman's condition. The ambulance was struck by a civilian's car. Because someone installed recapped tires on the ambulance, all four tires blew out during the accident causing the ambulance to turn over. Serviceman Moss was thrown from the ambulance and sustained complete paralysis; serviceman Jackson, who was in the same unit as the Veteran, sustained a right shoulder fracture; and the Veteran sustained a sprained ankle and high blood pressure. The Veteran stated that U.S. military police responded to the accident, and prepared a report of the accident. The Veteran reports he was taken back to the medical facility at Bad Hersfeld for treatment of his injuries. The others were evacuated by medevac to the Frankfurt Army Regional Medical Center. Although he did not complain of any spinal problem at the time of the accident, within a short period of time, his neck and low back became painful; and he was treated three or four times for his spinal conditions in service at the medical facility at Bad Hersfeld. Although the Veteran's STRs are of record, there is no evidence of a motor vehicle accident or treatment for any residuals of trauma. It does not appear that a search for hospital records from Bad Hersfeld for treatment following the rollover accident has been made. In addition, an attempt should be made to obtain any military police reports of the accident. The Board notes that post-service treatment records since 1982 were obtained. Most references to back pain in the 1980's treatment records were due to urinary or gastrointestinal problems, or work-related injuries. The first reference to an in-service motor vehicle accident was contained in a May 1985 VA psychiatric consultation in which the Veteran complained of anxiety and depression due to his involvement in a motor vehicle accident in service in Germany in which a close friend became a quadriplegic. The next reference in the Veteran's treatment records regarding the in-service accident was in a December 2007 VA progress note in which the Veteran complained of chronic back pain due to an in-service ambulance rollover accident. The diagnosis was acute back strain. The Veteran noted the in-service accident in subsequent treatment records. The Veteran also contends that he was treated for a slip and fall injury after service sustained at a resort while on vacation with his family. The Veteran stated that he was unable to obtain a "full settlement" for this injury because a prior injury was found on a magnetic resonance imaging (MRI) and the health care provider diagnosed a prior injury. The Veteran testified that the treating health care provider is no longer practicing, and these treatment records cannot be obtained. Treatment records pertaining to a spinal condition or a medical imaging report include private treatment records in May 1984 noting that the Veteran sustained a work-related injury to his back while preventing a patient from falling. A computer axial tomography (CT) scan found narrowing of the spinal canal by congenitally short pedicles accentuated at the L5-S1 level by a diffusely bulging disc. Private treatment records in October 1984 note that the Veteran sustained a work-related injury to his neck while helping a patient to a chair. In light of the unavailability of the Veteran's putative treatment for the slip and fall injury, the Board will provide the Veteran an opportunity to obtain the legal records regarding his slip and fall injury which could provide pertinent evidence regarding a prior spinal injury. If the Veteran has any legal records from the 1980's work-related injuries, he should submit them also. The Veteran also testified that, in approximately 2014, he underwent a CT scan, and a VA physician determined that he suffered from spinal residuals due to the in-service rollover accident. The last attempt to obtain the Veteran's VA treatment records was in July 2011. Relevant ongoing medical records since July 2011 should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Request through official sources the hospital/clinical records from the Veteran's reported treatment at Bad Hersfeld, Germany in 1980 and 1981. All efforts to obtain these records must be documented in the claims file. If additional information is needed from the Veteran to request these records, the Veteran should be asked to provide it. If the records cannot be obtained, this fact should be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. 2. Request through official sources any military police records related to the Veteran's claimed ambulance accident while driving between Bad Hersfeld and Frankfort, Germany in which he and servicemen Vernon Moss and Charles Jackson were involved. The ambulance accident occurred between 1980 and 1981, while the Veteran was attached to his unit in Bad Hersfeld, Germany. If additional information is needed from the Veteran to request these records, the Veteran should be asked to provide it. If the records cannot be obtained, this fact should be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. 3. Obtain relevant VA treatment records dating since July 2011, including a CT scan conducted around 2014, which are not currently contained in the electronic claims file. If the CT scan or other records are not available, the Veteran should be notified of such. 4. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his back and neck. After securing the necessary release, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran should be notified of such. 5. Instruct the Veteran to submit any legal documents he has from his slip and fall injury or work-related spine injuries in the 1980's. 6. If and only if, a newly-obtained record demonstrates that the Veteran was involved in a motor vehicle accident in service, schedule the Veteran for VA spine examination, for the purpose of determining whether his claimed cervical and lumbar spine disability is related to service. The electronic claims file must be reviewed in connection with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed cervical or lumbar disability is related to the Veteran's active service. The examiner should explain the reasons for the conclusion reached. 7. After undertaking any additional development deemed necessary, the AOJ should readjudicate the claims on appeal. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).