Citation Nr: 1533140 Decision Date: 08/04/15 Archive Date: 08/11/15 DOCKET NO. 05-15 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a right knee disorder, including as secondary to a back disorder. 3. Entitlement to service connection for a left knee disorder, including as secondary to a back disorder or a right knee disorder. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The appellant served on active duty for training from July 1985 to December 1985, for additional periods of active duty for training in June 1986, in 1987, and in July 1988, and remained on the rolls in the U.S. Army Reserve until December 1992. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied a petition to reopen a final disallowed claim for service connection for a back disorder and denied original claims for service connection for right and left knee disorders. The appellant testified before the Board sitting in Washington, D.C. in December 2008. A transcript of the hearing is associated with the claims file. In March 2009, the Board denied the petition to reopen a final disallowed claim for service connection for a back disorder and denied service connection for right and left knee disorders. The appellant appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2011, the Court reversed the Board decision and granted the petition to reopen the final disallowed claim for service connection for a back disorder and remanded the appeal for further proceedings. The Court vacated the decision relevant to the bilateral knees for further adjudication. In March 2012, the Board remanded the back and knee issues to the originating agency for additional action in accordance with the Court's decision. The case has been returned to the Board for further appellate action. The record before the Board includes the Veteran's entirely electronic claims files within Virtual VA and the Veterans Benefits Management System. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND A review of the claims file reveals that the RO has not substantially complied with the Board's March 2012 remand directives. The Board noted in its prior remand that additional requests for Army personnel and private medical records were necessary. As to private records, the Board observed that records had not been requested from two private hospitals where the appellant underwent immediate post-accident treatment in April 1986 and subsequent surgical procedures in February and July 1988. If available, these records may show the extent of the initial back injury and progression of the residual symptoms. The appellant noted in an October 2003 authorization that the two hospitals are Marshall Memorial Hospital (possibly later renamed Marshall Regional Medical Center and Good Shepherd Medical Center) in Marshall, Texas and Medical Arts Hospital (possibly renamed Lifecare Medical Arts Hospital) in Dallas, Texas. To assist in adjudicating this claim, the Board ordered that an attempt should be made to recover any relevant records available. 38 C.F.R. § 3.159(c) (2014). There is no evidence to suggest that this evidentiary development occurred. In fact, in April 2015, the appellant's representative submitted a statement confirming that the Veteran had not been contacted regarding additional treatment records. Further, the Board noted in its prior remand that the appellant's service personnel records are limited to a one-page table of Army Reserve service showing retirement points earned from 1985 to 1988 and a discharge in 1992. A request to the U.S. Army Reserve Personnel Command for any additional records is necessary as the appellant continued to serve on two additional periods of ADT and IDT after the contended aggravation of the back injury. Records of his duty assignments, performance, and limitations may show the extent of the progression of the residuals of the initial back injury. Similarly, however, there is no evidence that this evidentiary development occurred subsequent to the Board's prior remand. Moreover, the Board determined that a VA examination and medical opinion is needed to address whether the initial back injury was permanently aggravated beyond the normal consequences or progression of the residuals, and whether either knee disorder is secondary to the aggravated back disorder. Following the Board's remand, however, no examination was ordered. The Veteran's representative, in April 2015, confirmed that the Veteran has not been scheduled for any examination. Finally, the Board required the back and knee issues to be readjudicated by way of a supplemental statement of the case. No such readjudication occurred prior to the matter being recertified to the Board. Because the RO has not undertaken the action required by the Board's March 2012 remand, additional remand is necessary and unavoidable. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED to the RO for the following actions: 1. Request from the appellant the identification and address of the hospitals or medical centers where he received immediate treatment following the automobile accident in April 1986, received back muscle injections after ADT in June 1986, and underwent lumbar disc and right knee surgery in February 1988 and July 1988. Unless otherwise specified by the appellant use the following information: a. Request relevant records of care for back injuries and treatment at Good Shepherd Medical Center - Marshall, 811 S. Washington, Marshall, Texas 75670, from April 1986 to January 1988; and b. Request relevant records of care for lumbar spine and right knee surgery at Lifecare Medical Arts Hospital, 6161 Harry Hines Boulevard, Dallas, Texas 75235, from January 1988 to August 1988; and c. Request authorization from the appellant, and if authorized, request relevant records of care as indicated above and associate any records received with the claims file. 2. Request from the U.S. Army Reserve Personnel Command, all records of ADT and IDT service for the appellant from 1985 to 1992. Associate any records received with the claims file. 3. When the records above or negative responses have been received, then schedule the appellant for a VA orthopedic examination of his lumbar spine and bilateral knees. Request that the examiner review the claims file and note review of the claims file in the examination report. a. Request that the examiner provide an evaluation of the appellant's current lumbar muscle and spinal disease and bilateral knee disorders. b. Request that the examiner provide opinions as requested below to a level of confidence of "at least as likely as not" or 50 percent possibility or greater. (i) Were the appellant's initial back injuries sustained in an April 1986 automobile accident permanently aggravated beyond the normal recovery process from the injuries assuming the appellant experienced the rough ride to the June 1986 ADT training as he described? (ii) Were the appellant's initial back injuries (sustained in an April 1986 automobile accident) permanently aggravated beyond the normal recovery process from the injuries assuming the appellant experienced an exacerbation while looking at files during the June 1986 ADT training as described by the examiner on June 10, 1986? (iii) If determinable from the records, was the lumbar disc damage that was repaired in February 1988 caused by the April 1986 accident, the rough truck ride or bending over files in June 1986, a fall down stairs, or a progression of the initial injury? (iv) Did the residuals of the back injury cause or permanently aggravate a right knee disorder? (v) Did the residuals of the back injury or the right knee disorder cause or permanently aggravate a left knee disorder? 4. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claims for service connection for a back and bilateral knee disorders. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the Veteran with the development of his claims. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. These claims 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).