Citation Nr: 1604321 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 10-00 192A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for residuals of a neck injury. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for lower back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The appellant served in the Army National Guard. His service included periods of active duty for training (ACDUTRA) from May 1983 to September 1983, and in June 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied service connection for muscle strain of the neck (claimed as neck pain). In August 2012, the appellant and his spouse testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing has been associated with the claims file. In December 2012, the Board remanded the issue developed for appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In September 2013, the appellant submitted a notice of disagreement (NOD) in response to an August 2013 rating decision, issued by the RO, which found that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for lower back pain. 38 C.F.R. § 20.201 (2015). The appellant has not been furnished a statement of the case (SOC) with respect to that issue, and the RO recently requested return of the case to process the NOD. 38 C.F.R. § 19.29 (2015). This matter is discussed in further detail below. The Board notes that, in addition to the paper claims file, the appellant also has electronic Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files. The electronic files contain additional evidence, including the aforementioned August 2013 rating decision, the September 2013 NOD, additional VA and private treatment records, and a September 2015 brief from the appellant's representative, which the Board has reviewed. In this regard, the Board notes that the AOJ added medical evidence to the record in July 2013 and September 2013, subsequent to issuance of a June 2013 supplemental SOC (SSOC) addressing the appellant's neck claim. The appellant has not waived AOJ review of that evidence. However, the evidence contains no new or additional information bearing on the etiology of the appellant's neck complaints. As such, no waiver is necessary. 38 C.F.R. § 20.1304(c) (2015). For the reasons set forth below, this appeal is again being REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In June 2013, the appellant was examined for purposes of obtaining a medical opinion with respect to whether it was at least as likely as not that he had a present disorder of the cervical spine or neck that was related to a documented injury during ACDUTRA in 1984. After examining the appellant and reviewing the record, the examiner opined that such a relationship was unlikely. However, in doing so, the examiner relied, in part, on an inaccurate factual predicate; namely, that a subsequent separation examination report was "void of complaints of ongoing neck pain." Significantly, the examination to which the examiner referred was performed in July 1983, many months prior to the appellant's documented injury in 1984. As such, the matter must be returned to the examiner for further review and clarification. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 461 (1993). During the June 2013 VA examination, the appellant reported that he had served in the National Guard from 1983 to 1989. He also reported that he had received private treatment for problems related to his neck in the 1980s, 1990s, and around 1999 or 2000. Presently, the most recently dated service treatment records in the claims file are dated in April 1984. In light of the appellant's report of continuing service after that time, efforts should be made to ensure that no additional service treatment records exist; to include in the custody of the appellant's National Guard unit. Inasmuch as he has alleged that he was permanently placed on light duty after the accident in 1984, his service personnel records should be sought as well. In addition, as the claim is being remanded, he should be asked to provide releases for records of the private, post-service treatment he reportedly received prior to 2003. As discussed above, the appellant has filed a timely NOD in response to an August 2013 rating decision, issued by the RO, which found that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for lower back pain. See Introduction, supra. He has not been furnished an SOC with respect to that issue, and the RO recently requested return of the case to process the NOD. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant files a timely NOD as to a particular issue, and no SOC is furnished, the Board should remand, rather than refer, the issue for the issuance of an SOC. 38 C.F.R. § 19.9 (2015). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to provide releases for relevant records of the treatment he reportedly received for problems related to his neck in the 1980s, 1990s, and around 1999 or 2000, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue developed for appeal. If the appellant provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record on appeal. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and his representative should be notified. 2. Request from all appropriate source(s) (to include the appellant's National Guard unit) copies of the appellant's complete service personnel records, and any additional service treatment records (particularly, any such records dated subsequent to June 1984), following the procedures set forth in 38 C.F.R. § 3.159. Efforts to procure the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and his representative should be notified of their right to submit alternative evidence. 3. After the foregoing development has been completed to the extent possible, arrange to have the VA examiner who previously evaluated the appellant in June 2013 review the expanded record. After reviewing the expanded record, the examiner should prepare a supplemental report indicating the extent to which, if any, the additional evidence impacts on her prior opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the appellant has a disorder of the cervical spine or neck that is related to a documented neck injury during ACDUTRA in 1984. In so doing, the examiner must take note of, and clarify, that the separation examination report she cited in her prior opinion as "void of complaints of ongoing neck pain" was performed in July 1983, many months prior to the appellant's documented injury in 1984. If the June 2013 examiner is no longer employed by VA, or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the appellant is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. 5. Unless the claim is resolved by granting the benefits sought, or the NOD is withdrawn, furnish an SOC to the appellant, in accordance with 38 C.F.R. § 19.29, concerning the matter of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for lower back pain. The issue should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These matters 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). _________________________________________________ A. JAEGER 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 this appeal. 38 C.F.R. § 20.1100(b) (2015).