Citation Nr: 1600011	
Decision Date: 01/04/16    Archive Date: 01/12/16

DOCKET NO.  10-13 192	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Oakland, California


THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for a back disability has been received.  

2.  Entitlement to service connection for a neck disability, to include as secondary to service connected thoracolumbar spine degenerative disc disease, right shoulder degenerative joint disease, and/or right posterior shoulder gunshot wound.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse 


ATTORNEY FOR THE BOARD

S. Kim, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1966 to April 1969.  He is the recipient of a Purple Heart Medal.    

This appeal to the Board of Veterans' Appeals (Board) arose from a June 2008 rating decision in which the RO in San Diego, California, inter alia, denied the petition to reopen the claim for service connection for a back disability and claim for service connection for a neck disability.  The Veteran filed a notice of disagreement (NOD) with the RO's decision in June 2009.  The RO issued a statement of the case (SOC) in February 2010 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010.   The Board notes that jurisdiction over this claim was transferred to the RO in Oakland, California, which has certified the appeal to the Board.  

During the pendency of the appeal, in July 2010, the RO awarded service connection for a back disability-specifically, thoracolumbar spine degenerative disc disease; this matter is being formally dismissed below.  In a supplemental statement of the case (SSOC) also issued in July 2010, the RO continued to deny service connection for a neck disability.  Hence, the Board's characterization of the appeal as encompassing both matters are set forth on the title page.

In September 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

This appeal has been processed utilizing the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems.   

The Board's dismissal of the petition to reopen the claim for service connection for a back disability is set forth below.  The matter of service connection for a neck disability, to include as secondary to service-connected thoracolumbar spine degenerative disc disease, right shoulder degenerative joint disease, and right posterior shoulder gunshot wound, is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ).  VA will notify the Veteran when further action, on his part, is required.


FINDING OF FACT

In a July 2010 rating decision, the RO reopened granted service connection and assigned an initial, 10 percent rating for thoracolumbar spine degenerative disc disease effective February 11, 2008.  


CONCLUSION OF LAW

As the July 2010 award of service connection for thoracolumbar spine degenerative disc disease represents a grant of the benefit sought on appeal with respect to the claim for a back disability, there remains no case or controversy over this issue affecting the provision of benefits by VA over which the Board may exercise jurisdiction.  38 U.S.C.A. §§ 511, 5107, 7104 (West 2014); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.  38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a). 

One of the principal functions of the Board is to make determinations of appellate jurisdiction.  38 C.F.R. § 19.4.  The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue.  38 C.F.R. § 20.101(d). 

Although the Veteran perfected an appeal to the Board with respect to the June 2008 denial of the petition to reopen the service connection claim for a back disability, in a subsequent, July 2010 rating decision, the RO reopened the previously-denied claim, and granted service connection and assigned an initial, 10 percent rating for thoracolumbar spine degenerative disc disease, effective February 11, 2008.  

Under these circumstances, the Board finds that the petition to reopen the service connection claim for a back disability, which was formerly in appellate status prior to July 2010, along with the de novo claim for service connection, has been granted by the decision of a lower adjudicative body, fully resolving the Veteran's appeal as to this matter.  The Veteran was notified of this fact in the July 2010 rating decision.  

Hence, with respect to the petition to reopen the service connection claim for a back disability, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104 , 7105, and 38 C.F.R. § 19.4.  In the absence of any justiciable question, the appeal as to this matter must be dismissed.


ORDER

The appeal as to the petition to open the claim for service connection for a back disability is dismissed.


REMAND

The Board's review of the claims file reveals that further AOJ action on the claim remaining on appeal is warranted.  

The Veteran contends that his neck disability is the result of an in-service explosion as well as an in-service incident during which a log rolled over his body.  In the alternative, the Veteran has alleged that his neck disability was caused or aggravated by his service-connected thoracolumbar spine degenerative disc disease, right shoulder degenerative joint disease, and/or right posterior shoulder gunshot wound.  The Veteran also asserts that his neck disability symptoms has continued since service.   

Military personnel records and service treatment records document that the Veteran was involved in a September 1967 explosion during which he sustained a right shoulder shrapnel injury, although the service treatment records are silent with respect to complaints or treatment pertaining the neck. 

In a March 2010 opinion, Dr. R.P, a VA physician, indicated that the Veteran has been suffering from neck pain ever since his service "as a direct result of the explosion."  However, this opinion did not contain a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The Veteran underwent a VA examination in May 2010 and was diagnosed with cervical spine degenerative disc disease.  The May 2010 VA examiner opined that it is less than likely (less than 50 percent probability) that the Veteran's neck disability is "a service-related issue and more likely an age related issue."  The VA examiner reasoned that there are no documented notations of any neck injuries during the Veteran's service.  However, the VA examiner based his etiology opinion on the lack of documented neck complaints.  The VA examiner did not discuss the relevance or import of the Veteran's lay statements regarding in-service neck symptoms and immediately following service.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination is inadequate where the examiner relied on lack of evidence in service treatment records to provide a negative opinion).  

Moreover, there is no medical opinion currently of record addressing the Veteran's contention that his neck disability was caused or aggravated by his service-connected thoracolumbar spine degenerative disc disease, right shoulder degenerative joint disease, and/or right posterior shoulder gunshot wound.  

Under these circumstances, the Board finds that further medical opinion with sufficient findings-based on full consideration of the Veteran's documented medical history and assertions, and supported by a thorough, clearly-stated rationale-is needed to resolve the claim for service connection for a neck disability.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). 

Hence, the AOJ should arrange to obtain from the May 2010 VA examiner an addendum opinion.  The AOJ should only arrange for the Veteran to undergo further VA examination if the May 2010 VA examiner is not available or another examination of the Veteran is deemed medically necessary in the judgment of a competent professional.

The Board emphasizes that the Veteran's failure to report to any scheduled examination, without good cause, may well result in denial of the claim.  38 C.F.R. § 3.655 (2015).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.

Prior to arranging to obtain further medical opinion on this claim, to ensure that all due process requirements are met, and the record is complete, the AOJ should
give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).

As for VA records, the claims file reflects that the Veteran has been receiving treatment for his disability from the Palo Alto VA Healthcare Center and that records from that facility dated through August 2015 are associated with the file; however, more recent records may exist.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the AOJ should obtain all records of pertinent treatment from the Palo Alto VA Healthcare Center (since August 2015) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities.   

The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim remaining on appeal, explaining that he has a fully one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (West 2014).  

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal.  Adjudication of the claim should include consideration of all additional evidence added to the record since the last adjudication.

Accordingly, the matter is hereby REMANDED for the following action:

1.  Obtain from the Palo Alto Healthcare Center all relevant, outstanding records of evaluation and/or treatment of the Veteran dated since August 2015.  Follow the procedures of 38 C.F.R. § 3.159 (2015) as regards requesting records from Federal facilities.  All records and/or responses should be associated with the
claims file. 

2.  Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record.  Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

4.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.  

5.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the examiner who evaluated the Veteran and provided the May 2010 opinion.  

If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain medical opinion based on file review (to the extent possible).  Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if deemed necessary in the judgment of the physician designated to provide the addendum opinion.  

The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/ examination report should include discussion of the Veteran's documented history and lay assertions.

The examiner should identify any neck disability currently present or present at any time pertinent to the February 2008 claim, to include cervical spine degenerative disc disease noted in the May 2010 VA examination.   

Then, with respect to each such diagnosed disability, the examiner must provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability:

(a) had its onset during service or is otherwise medically related to service (specifically noting consideration of the Veteran's lay statements contending that he sustained neck injuries during the September 1967 explosion and the in-service incident during which a log rolled over his body); or, if not

(b) was caused OR is aggravated (worsened beyond the natural progression) by his service-connected thoracolumbar spine degenerative disc disease, right shoulder degenerative joint disease, and/or right posterior shoulder gunshot wound.  If aggravation is found, the examiner should attempt to quantify the additional disability resulting from aggravation.

In rendering each requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence, as well as all lay evidence-to include the Veteran's competent assertions as to the nature, onset, and continuity of symptoms.  

All examination findings and testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 

6.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the claims file since the last adjudication) and legal authority is warranted.
 
7.  If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).



_________________________________________________
JACQUELINE E. MONROE
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 the appeal.  38 C.F.R. § 20.1100(b) (2015).


Department of Veterans Affairs