Citation Nr: 1623904 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 12-15 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In response to the Veteran's request for a hearing before the Board, the RO scheduled him for a Board hearing in May 2016. However, the Veteran did not appear for the scheduled hearing, nor did he provide any reason for his failure to attend or request that the hearing be rescheduled. The notice letter regarding the hearing has not been returned as undeliverable. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2015). This appeal includes documents contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran contends that as a parachutist he injured his low back in service when he crashed into a tree during one of his jumps due to strong winds. While there is no evidence in the Veteran's service treatment records (STRs) of such an injury, his DD-214 documents that he received a Parachute Badge. In the January 2012 request for physical examination, the examiner was instructed to accept as true the Veteran's statement as to the circumstances of the claimed injury. The February 2012 VA examination opinion report states that it was less likely than not that the Veteran's degenerative disc disease of the lumbar spine was incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that there is no documentation to support the Veteran's contention that he injured his back in the military, he had no medical visits for his back, and his separation examination is negative for back or musculoskeletal complaints. The examiner did note that the Veteran had a work-related injury in 1994 in which he fell from a construction scaffold requiring hospitalization, and that it was after that time that the Veteran began to have treatment for his back. The Board notes that the earliest evidence of treatment for back pain in the claims file is in January 2001. There are no treatment records in the claims file regarding the 1994 construction accident. The Board finds the February 2012 VA opinion and rationale inadequate for rating purposes as the examiner did not accept as true the Veteran's statement regarding the circumstances of the claimed injury as instructed, and instead relied on the lack of evidence of a back injury in the STR's. Therefore, a remand is necessary for an addendum opinion that addresses whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current degenerative disc disease of the lumbar spine is related to or was caused by the parachute jump incident in which the Veteran hit a tree as a result of strong winds. Additionally, it appears that there may be some treatment records and Social Security Administration (SSA) records that are pertinent to the claim on appeal that have not been associated with the claims file. At the May 2003 General Medical examination for non-service connected pension, the Veteran reported that he had been in receipt of SSA benefits since August 2002. Also, the treatment records from the 1994 construction accident requiring hospitalization have not been obtained. VA's duty to assist under the Veterans Claims Assistance Act of 2000 includes helping claimants to obtain STRs and other pertinent records, including private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). As these private treatment records likely contain evidence pertinent to the determination of the Veteran's claim, on remand the AOJ should attempt to obtain the records and upon doing so complete any further development deemed necessary to adjudicate the Veteran's claim. The Veteran has indicated that he was taken off of jump status after the low back injury. Accordingly, efforts should be undertaken to attempt to obtain his service personnel records. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the decision and medical records considered by the Social Security Administration in making its decision for SSI disability benefits. Any negative response should be included with the claims file. 2. The Veteran should be contacted and requested to provide the names of all providers of medical care that he received for his degenerative disc disease of the lumbar spine. Additionally, the Veteran should be requested to provide the name of the hospital and/or provider of the medical care he received in 1994 after he fell off a construction scaffold and required hospitalization. After obtaining any necessary consent, the AOJ should contact the medical care providers and request copies, for association with the claims folder, of any and all records of treatment, to include records pertinent to the most recent medical treatment received. 3. The AOJ should attempt to obtain the Veteran's service personnel records to verify his report that he was taken off of jump status after the low back injury. 4. Thereafter, return the claims file to the VA examiner who conducted the February 2012 VA examination of the Veteran. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the February 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. In an addendum opinion, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current back condition, degenerative disc disease of the lumbar spine, is related to or was caused by the in-service parachute incident in which the Veteran hit a tree and injured his back or other incident of military service. In providing the opinion, the examiner is advised that the Veteran's account of the circumstances of the claimed injury is to be accepted as true, regardless of whether there is documented evidence of the event in the Veteran's STR's. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. Specifically, the Veteran reports that he injured his back in-service when strong winds blew his parachute into a tree, and that he has had progressive low back pain since the in-service injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner is unable to answer any question without resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 5. The AOJ should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 6. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant 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). _________________________________________________ BARBARA B. COPELAND 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).