Citation Nr: 1604060 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 13-20 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran and his wife presented testimony at a personal hearing before a Veterans Law Judge in July 2015. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In November 2015, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. In December 2015, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matter on appeal. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that while stationed in Korea, he went on sick call for problems with his spine and that an x-ray was taken. Service personnel records indicate that he was stationed in Korea from May 1973 to April 1974. Review of the service treatment records do not contain any references to treatment sought during this timeframe, though the Veteran was seen for a myriad of other complaints both prior to and following his foreign service. The Board also notes that a March 1976 VA Form 07-3101 requested health records from service, but did not include a request for clinical records or x-rays. On remand, a specific request for clinical records and x-rays dated during the Veteran's period of active duty service must be made. The Veteran underwent a VA Disability Benefits Questionnaire (DBQ) in June 2012. The VA examiner provided an opinion against the claims, in part based on the absence of service treatment records documenting problems related to the spine. The examiner did not consider the Veteran's competent assertions related to injuries he sustained during service. On remand, an addendum opinion should be obtained that considers the assertions raised by the Veteran during the course of his claim. In that vein, the Board notes that, although the Veteran has submitted several statements and has provided testimony during the appeal period, the essence of his assertions are that he started having severe back pain while in training, mainly jump school; that sharp pains started during infantry training and continued off and on during airborne training; that he had many instances of hitting the ground hard, not just from parachuting, but also from infantry operations; that the training he went through was intensive in that they ran everywhere in combat boots with field packs and steel helmets, commonly referred to as "steel pots," and that they ran an average of five miles per day with this gear on and wore the steel pots while making parachute jumps; that he made approximately 120 parachute jumps while on active duty; that after x-rays of his spine were taken during service (in Korea) and he was told there was nothing wrong, he just lived with the pain; and that he began getting chiropractic adjustments in approximately 1980. The Veteran testified that he continued to parachute after he got out of the military for a while; that he sustained a compression fracture in his lower spine, perhaps the third vertebra, in approximately 1976; and that the pain was the same as the pain he was already experiencing, and that the injury seemed to increase it. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's complete service clinical records and x-rays dated during active service. If additional records are not obtained, the record should document whether further efforts to obtain clinical records would be futile. 2. When the foregoing development has been completed, obtain an addendum opinion from the examiner who conducted the June 2012 DBQ. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the current lumbar and cervical spine disorders had their onset during active service or are related to any in-service disease, event, or injury, to include the Veteran's competent assertions as outlined in detail above. If the June 2012 VA examiner is not available, or if the requested opinion cannot be given without further examination of the Veteran, a new VA examination should be scheduled and the requested opinion provided. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Finally, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER 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).