Citation Nr: 1608819 Decision Date: 03/04/16 Archive Date: 03/09/16 DOCKET NO. 13-11 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from January 6, 2008, to January 29, 2008 and from October 2001 to February 2002. The Veteran also has other periods of ACDUTRA and inactive duty for training (INACDUTRA). This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2015, the Board remanded the matter for further development which has been completed, and the case has been returned for appellate consideration. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current back disability is due to injuries incurred during INACDUTRA or ACDUTRA on two occasions. The first occurred during drill exercises in October 25, 2003, and the second while mobilized in Puerto Rico in December 2003. He asserts that his back has not been the same since his injury and he did not seek medical care as he self-medicated. A November 2015 VA examination report diagnosed degenerative arthritis of the spine. Noting VA's concession of back injury on October 25, 2003, the examiner opined that it was less likely than not that the disability was incurred in or caused by service. He reasoned that the service injury was self-limited and there was no documented back care proximal to service discharge to constitute a medical disability in service, and interceding factors could not be excluded. The Board finds that this examination report is inadequate as the examiner failed to provide sufficient rationale for the conclusion reached and he heavily relied on the absence of contemporaneous evidence. In this regard, the Veteran is competent and credible as to his contentions of continuity of symptoms since service, and the examiner did not discuss this lay evidence. Additionally, the examiner did not discuss the December 2003 incident (during which VA has also determined that the Veteran was on INACUDTRA or on ACDUTRA). While the examiner indicated that there were interceding factors following the October 2003 incident, the Veteran, a nurse, stated that he was not aware of any such factors. Therefore, the Veteran should be afforded another examination addressing these deficiencies. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain verification regarding whether the Veteran was on active duty, ACDUTRA, or INACDUTRA in December 2003. The Board notes that the Veteran's military personnel records contain documentation that the Veteran was ordered to report on December 7, 2003 in support of Operation Iraqi Freedom. A December r18, 2003 document notes the Veteran was released from active duty. Additionally, there are several service treatment and personnel records from December 2003 that indicate he was placed on profile due to his back disorder, possibly through March 2004. Place a memorandum to the file listing the verified periods of service, to include active duty, ACDUTRA, and INACDUTRA. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, dated from November r2005 through the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current back disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. He or she should elicit a medical history from the Veteran regarding the onset of the disorder. It should be noted that Veteran is a nurse and is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Upon review of the record, to include the VA memorandum to be associated with the claims file outlining the dates of the Veteran's active duty, ACDUTRA, and INACDUTRA periods, the examiner must determine whether it is at least as likely as not that each current back disorder is due to an injury incurred in a period of INACDUTRA, or due to disease or injury incurred in a period of ACDUTRA, or incurred in or otherwise related to a period of active duty, to specifically the October 2003 and December 2003 incidents outlined by the Veteran. The examiner must address the Veteran's contentions of continuity of symptoms since the initial incident in October 2003. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 any scheduled 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. 6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ K. MILLIKAN 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).