Citation Nr: 1601750 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 09-05 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability, based upon substitution of the appellant as the claimant. 2. Entitlement to service connection for a left shoulder disability, based upon substitution of the appellant as the claimant. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had a period of active duty from October 1953 to March 1955, active duty for training from March 1972 to October 1972, and active duty from June 1976 to January 1977, and from October 1994 to August 1995. The Veteran had additional inactive service in the United States Army Reserve and the Army National Guard from January 1972 to October 1972, from November 1973 to January 1990, and from February 1991 to November 1991. He died in May 2011, and the appellant is his surviving spouse. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). This case was remanded by the Board in April 2011 and June 2012 for additional development. At the time of his death, the Veteran had a pending appeal of entitlement to service connection for a low back disorder. The Veteran perfected an appeal as to this claim in January 2009, and the issue was subsequently remanded by the Board for additional development in April 2011. Substitution in an appealed case requires a Notice of Disagreement to have been filed prior to the appellant's death. 38 U.S.C.A. § 5121A (West 2014). When a Veteran has a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2015). The statute regarding accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A (West 2014). The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212,122 Stat. 4145, 4151 (2008). In this case, the Veteran died in May 2011 and the appellant filed a proper claim for substitution in September 2011. The appellant was then substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death by the RO. 38 U.S.C.A. § 5121A (West 2014). The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board notes that in June 2012, the appellant's low back disability claim was remanded in part for the following reasons: provide the appellant's representative, Florida Department of Veterans Affairs (FDVA), with a copy of a February 2012 supplemental statement of the case (SSOC) as it was sent to the appellant's previous representative; obtain the Veteran's complete dates of ACDUTRA and INACDUTRA by day and month from the appropriate agency, to include the Alabama National Guard, National Guard Bureau (NGB), the U.S. Army Reserve Personnel Center (USARPC), and National Personnel Records Center (NPRC); contact the appropriate service department and/or any other Federal agency to obtain the Veteran's service treatment records from his period of active service from October 1953 to March 1955; and obtain a medical opinion with regard to the etiology of the Veteran's low back disability. As explained in the previous remand, in obtaining the above-requested opinion, the examiner was directed to render an opinion as to whether the Veteran's diagnosed back disability, including but not limited to degenerative disc disease, was at least as likely as not (i.e., 50 percent or greater possibility) related to the Veteran's periods of active service, active duty training, and/or an injury during a period of inactive duty for training. Further, the examiner was asked to express an opinion as to whether the Veteran's diagnosed back disability began prior to, during, or after the Veteran's periods of active service from October 16, 1994 to March 3, 1995 and March 25, 1995 to August 19, 1995. If the disability was found to have pre-existed a period of active duty, the examiner was directed to opine as to whether the disability was at least as likely as not (i.e., 50 percent or greater possibility) permanently aggravated beyond the natural progress of the disease during either period of active service. If the disability was not found to have been incurred or aggravated during either of these periods of active service, the examiner was to opine as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) manifested in the one year period ending in August 1996. If the back disability was found to have begun in that one year period, the examiner was to opine as to the degree of severity of the disability during that period. The Board observes that there has not been at least substantial compliance with the June 2012 Board remand instructions. First, the Board initially notes that the FDVA was not provided a copy of the February 2012 SSOC. Nevertheless, no prejudice results because the representative thereafter reviewed the case and provided a VA 646 Statement of Accredited Representative in Appealed Case in October 2015. Additionally, the Board observes that the RO contacted the NGB on multiple occasions to obtain information pertaining to service. However, the record reveals that the NGB did not respond to any of the RO's requests. Under 38 C.F.R. § 3.159(e), when VA becomes certain that Federal records do not exist or that further efforts to obtain them would be futile, then VA must provide the appellant with oral or written notice of that fact. 38 C.F.R. § 3.159(e). The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA would take regarding the claim, and notice that the appellant is ultimately responsible for providing the evidence. Id. There is no indication here that the records do not exist or that further efforts to obtain them would be futile. Accordingly, remand is required. The Board further notes that pursuant to the June 2012 remand instructions, the Veteran's claims folder was referred to VA medical professional for an opinion as to the etiology of the Veteran's low back disability in September 2015. The VA examiner noted the Veteran's in-service treatment for his back in service, to include treatment in September 1972 for a contusion to the lumbar spine from a slip and fall accident, for back pain in November 1976 and diagnosis of myalgia, for lumbar tenderness in January 1977, and in November 1994 at which time an X-ray report revealed minimal osteophytosis off the anterior vertebral bodies, but no evidence of disc space narrowing or loss of vertebral height. She also noted treatment for the Veteran's back that was not during his active service which included in August 1983 for a low back strain and a treatment record dated September 1988 from Dr. W. who noted and explained to the Veteran that there was a left lateral bulge which was possibly a herniation at the L4-5 level and advised the Veteran that he needed to be careful with his back and use proper posture. Dr. W. thereafter referred the Veteran to Dr. H., and X-rays were taken which Dr. H. did not find to be remarkable. The examiner further noted diagnosis of lumbar spine degenerative disc disease L4-5 in July 1996, a June 1997 lumbar spine X-ray that revealed impression of minimal degenerative changes at endplate L5, and a December 1999 MRI that revealed lumbar strain with radicular pain. After consideration of the Veteran's medical history, the VA examiner opined that the Veteran's lumbar degenerative disc disease was diagnosed between his second and third active duty periods (September 1988) and that lumbar degenerative joint disease and degenerative disc disease at L2-3, L3-4, L4-5, and L5-S1 is consistent with natural disease progression. She further opined that the Veteran's diagnosed low back disability was not incurred during any period of active service and less likely than not permanently aggravated beyond the natural progression of the disease during either period of active service based on no objective medical evidence of aggravation. Moreover, she opined that the degenerative disc disease did not manifest in the one year period ending in August 1996. Her rationale was based on her finding that the Veteran's disability was consistent with natural aging and is not uncommon in the general adult population. She further reported that everyone with chronic or recurrent back pain had a first episode of back pain - this does not necessarily make the initial episode(s) related to the later chronic condition. The reasons are that while a back sprain or strain involves the muscles and ligaments (soft tissues) of the spinal region, spondylosis and degenerative disc disease is a degenerative process involving the discs and vertebral bodies. The one is not the cause of, or related to, the other. However, individuals often remember an episode "where it all began" despite the lack of a medical nexus. She further opined that the Veteran's in-service lumbar contusion in September 1972, treatment for myalgia in November 1976, lumbar tenderness in January 1977, and lumbosacral strain in August 1983 were acute and transient injuries and not severe enough to result in the development of subsequent lumbar degenerative disc disease and arthritis in 1988 and 1999. She also noted review of medical literature that showed natural age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of the disc) were the predominant predictors of degenerative disc disease. The Board finds that the opinion rendered by the VA examiner as to whether the Veteran's low back disability was related to or aggravated by military service is inadequate for evaluation purposes. Specifically, in finding that the Veteran's degenerative disc disease manifested in 1988, the VA examiner did not address the Veteran's November 1994 motor vehicle accident in service and documentation of low back pain when determining that the Veteran's low back disability was not aggravated during the third period of active service. Also, the examiner did not render an opinion as to whether the Veteran's low back disability was related to any period of ACDUTRA or an injury incurred during INACDUTRA as directed by the Board in the June 2012 remand. Notably, a review of the record documents treatment for lower back pain in June 1991 during a period of INACDUTRA. Moreover, in finding that the Veteran's low back disability was not aggravated beyond the natural progression of the disease during any period of active service, the only rationale provided by the VA examiner was that there was no objective medical record evidence of aggravation. Indeed, the subsequent rationales provided by the VA examiner only indicated that the Veteran's low back disability was not caused by or related to military service. Therefore, the Board finds that an addendum opinion should be obtained as to whether the Veteran's low back disability was aggravated during his third period of active service and whether the disability was related to a period of ACDUTRA or INACDUTRA. Finally, with respect to the appellant's claim of entitlement to service connection for a left shoulder disability, the Board remanded this claim in June 2012 for the AOJ to provide the appellant and her current representative, FDVA, with a statement of the case (SOC) addressing this issue as the Veteran submitted a timely notice of disagreement (NOD) to a February 2009 rating decision denying this claim. See Manlincon v. West, 12 Vet. App. 238 (1999). A review of the record reveals that in March 2012, the RO sent the appellant a SOC that continued the denial of the left shoulder disability claim. The appellant did not thereafter submit a substantive appeal. Crucially, however, the SOC was not sent to the appellant's current representative, FDVA. Further, the RO has not since sent the appellant's current representative a copy of the SOC. Thus, the Board finds that on remand, FDVA must be provided a copy of the March 2012 SOC for compliance with the June 2012 Board remand instructions. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. As the 2012 statement of the case was not sent to the representative of record, the due process deficiency MUST be rectified on remand by re-issuing the statement of the case for a left shoulder disability to the appellant and her representative of record, FDVA. 38 C.F.R. § 19.30. The appellant and her representative should be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on the issue to secure appellate review by this Board. 2. Request from the NGB and the U.S. Army Reserve Personnel Center, the dates of ACDUTRA/ INACDUTRA by day and month (for example, by requesting the Soldier Detail Report) for the Veteran's periods of service in the Army National Guard/ Reserves. The RO must continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. If, the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) notify the appellant that she is ultimately responsible for providing the evidence. The appellant and her representative must then be given an opportunity to respond. 3. If the information is not obtained from the above sources, request that the Defense Finance and Accounting Service provide information as to whether the Veteran was on ACDUTRA or INACDUTRA from August 11 to August 23, 1983; October 16, 1983 and June 28, 1991. If the information requested is not obtained, the RO must inform the appellant of the absence of response received for request of records pursuant to 38 C.F.R. § 3.159(e). This notice should explain VA's efforts to obtain the records, describe any further action VA will take regarding the claims, including notice that VA will decide the claims based on the evidence of record unless the claimant submits the records, and notify the appellant that she is ultimately responsible for providing the evidence. 4. Thereafter, obtain an addendum opinion from the September 2015 VA examiner (or a suitable substitute) with regard to the etiology of the Veteran's diagnosed low back disability and its relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. In particular, the examiner is asked to express an opinion as to whether the Veteran's diagnosed back disability, including but not limited to degenerative disc disease, was at least as likely as not (i.e., 50 percent or greater possibility) due to a disease or injury incurred or aggravated during a period of active duty training, or resulted from an injury incurred or aggravated during a period of inactive duty training. Additionally, in finding that the Veteran's degenerative disc disease began prior to his period of active duty from October 16, 1994 to March 3, 1995, and March 25, 1995 to August 10, 1995, the examiner must opine as to whether the disability was at least as likely as not (i.e., 50 percent or greater possibility) permanently aggravated beyond the natural progress of the disease during either period of active service. The examiner should address the Veteran's treatment for low back pain from a motor vehicle accident in November 1994. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without examination of the Veteran, then such examination must be provided. 5. After the requested medical opinion has been completed, the medical opinion report should be reviewed to ensure that it is in complete compliance with the directives of this remand. The medical opinion report should be returned to the examiner if it is deficient in any manner. 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the appellant's claim of entitlement to service connection for a low back disability. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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) (2015).