Citation Nr: 1605572 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 13-00 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a spine disorder, to include osteoarthritis of the cervical spine with degenerative disc disease, osteoarthritis of the lumbar spine with degenerative disc disease, chronic thoracolumbar strain, cervical myelopathy, and cervical stenosis. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. At the March 2015 hearing before the Board the Veteran submitted evidence subsequent to the February 2015 supplemental statement of the case. However, he submitted a waiver of RO review of additional evidence in July 2015; therefore, a remand for initial RO review is not necessary. 38 C.F.R. § 20.1304 (2015). REMAND The Veteran seeks service connection for a spine disorder, which he asserts was caused by an in-service fall and heavy lifting. The Veteran's service treatment records are not included in the record. The RO requested the service treatment records in April 2009, and a response provided in May 2009 indicated that the service treatment records could not be located. The RO also sent letters to the Veteran in April and July of 2009 requesting his service treatment records. In the July 2009 notice letter, the RO provided the Veteran with a comprehensive list of evidence he could provide as a substitute for the missing service treatment records. The Veteran subsequently submitted two buddy statements and a statement from his ex-wife to corroborate his assertion that he had complained of back pain during service. The RO issued a formal finding of unavailability of service treatment records in August 2009. Additionally, a November 2012 statement of the case notified the Veteran that the service treatment records were unavailable and that it would be futile to make any further attempts to locate the records. In an August 2010 letter, the Veteran indicated that he was awaiting a response from a warehouse in Philadelphia regarding his service treatment records. The record does not provide any follow-up details regarding that search. In light of the fact that the Veteran's service treatment records have not been located, the Board finds that a remand is necessary to follow up with the Veteran regarding service treatment records at a Philadelphia warehouse. See 38 C.F.R. § 3.159(c)(1)(2015); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (noting that VA's duty to assist is heightened when service treatment records are unavailable). It appears that a search for the Veteran's service personnel records has never been undertaken. In addition, it does not appear that the RO has directly requested any of the Veteran's unit history records from the First Battalion Ninth Marines, First Marines Division. As these records may contain information relevant to an alleged in-service injury, the Board finds that a remand is necessary in order to attempt to obtain the Veteran's personnel and unit history records. See Id. The Veteran also testified at the May 2015 Board hearing that in the first few months following his discharge from service, he received treatment for his back pain at the VA Medical Center in Philadelphia, Pennsylvania. The Veteran further indicated that he received treatment at the VA Medical Center in Richmond, Virginia in the 1980's, but the earliest treatment records from that facility are from 2008. The evidence does not indicate that the RO has requested VA treatment records from the VA Medical Center in Philadelphia, Pennsylvania or earlier treatment records from the VA Medical Center in Richmond, Virginia. As such, the Board finds that a remand is necessary to attempt to obtain any outstanding VA treatment records. See 38 C.F.R. § 3.159. In a July 2009 written statement the Veteran asserted that his current spine disorder began in service. The Veteran reported that lifting heavy objects and a fall while on active duty ultimately caused his current back problems. In a July 2012 buddy statement, one of the Veteran's fellow service members stated that the Veteran would complained on occasion of pain in the shoulder, back, and neck. In a July 2013 statement, the Veteran's ex-wife asserted that the Veteran complained of chronic back pain during their marriage which began in June 1979. Another buddy statement submitted in March 2015 indicated that there were a few times when the Veteran was unable to perform his duties because of back issues. The Veteran underwent a VA examination in December 2012. The examiner noted the Veteran's statements regarding the onset of symptoms in 1980, and how the symptoms had persisted since service. The examiner also noted the Veteran's in-service duties in which he carried fifty to sixty pound backpacks. The VA examiner noted the Veteran's statement that he went to sick call three or four times and was given muscle relaxers to treat the symptoms. The examination revealed functional loss and localized tenderness or pain to palpation. The VA examiner provided the following etiological opinion: Since no military service treatment records were provided for review, it is less likely than not that the claimed [back condition] had its etiology during active service. Due to the lack of service medical records, I cannot render an opinion regarding direct service connection without resorting to mere speculation. The medical opinion provided by the VA examiner is inadequate as it was based solely on the lack of service treatment records. Also, there is no evidence that the VA examiner considered the Veteran's lay statements of record in formulating the opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury, but relied on the service treatment records to provide a negative opinion). Accordingly, the claim must be remanded in order to obtain an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, including service treatment records potentially located at a warehouse in Philadelphia. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of the Veteran's response, the RO must: (a) obtain all records of treatment from the Philadelphia VA Medical Center and all records of treatment from the Richmond, Virginia VA Medical Center dated prior to 2008 and after November 2012; (b) contact the appropriate records repository to request complete copies of the Veteran's service personnel records; and (c) contact the appropriate service department/agency to request the Veteran's unit history records for the First Battalion Ninth Marines, First Marine Division from 1977 to 1982. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran 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 claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA examination to determine whether a spine disorder is related to his military service. The Veteran's claims file and all electronic records must be made available to an appropriate examiner, and the examiner must indicate that these records have been reviewed. After reviewing the evidence of record, the examiner must provide an opinion as to whether any currently or previously diagnosed spine disorder is related to the Veteran's active military service. In doing so the examiner must acknowledge and discuss the Veteran's assertions regarding the onset of symptoms, the alleged fall, and his in-service duties. The examiner must be advised that if the Veteran's service treatment records are unavailable, the examiner may not rely solely on the lack of service treatment records to support an opinion. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the examination report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran must be furnished a supplemental statement of the case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).