Citation Nr: 1724079 Decision Date: 06/26/17 Archive Date: 07/10/17 DOCKET NO. 12-33 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran is from the Vietnam Era having served on active duty in the U.S. Army from January 1971 to October 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the August 2010 rating decision, the RO denied the Veteran's claim for a low back disability finding that the Veteran did not submit new and material evidence that would allow for the claim to be reopened. The Veteran filed a Notice of Disagreement (NOD) and appealed the issue to the Board. The Veteran subsequently testified at a Board video-conference hearing in September 2015 before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In a February 2016 decision, the Board found new and material evidence had been submitted in support of the Veteran's claim and therefore, issued a decision reopening the Veteran's claim of low back disability. Consequently, the Board remanded the claim for further development. In August 2016, the claim was readjudicated resulting in the RO denying service connection. The appeal is presently before the Board for further review and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board has thoroughly reviewed the Veteran's electronic claim file (ECF) and has determined a remand is necessary to properly adjudicate the Veteran's claim. In February 2016, the Board remanded the case to obtain a medical opinion which included addressing the Veteran's lay statements of continuity of back pain symptoms, and to obtain outstanding VA treatment records. As the Board's explicit instructions advised the examiner to consider the Veteran's lay statements in his or her opinion, the Board finds the opinion is lacking this requirement. Further, the Veteran's file appears to be lacking pertinent VA treatment records. As such, the Board must find that the requested development of the low back claim was not substantially complied with pursuant to Stegall v. West, 11 Vet. App. 268 (1998). In the previous remand, the Board instructed that all of the Veteran's outstanding VA medical records be associated with the claim file dated from 1974 to 1999 and all attempts to procure should be noted in the file whether positive or negative. After a review of the Veteran's file, the Board notes outstanding VA records were added; however, it appears that some records are still outstanding. In one instance the Veteran indicated that after his separation from service, he went to the Miami VA medical center (VAMC) for his back approximately in 1974. See Hearing Transcript page 6. The Veteran's file includes records from Miami VAMC from 1984 to 1999. No records from Miami VAMC prior to 1984 are included in the Veteran's file, nor is there a notation in the file that indicates whether an attempt was made to procure said records. Additionally, the Veteran stated that he used to go to therapy daily for his back pain. See Tallahassee VAMC, Medical Record Note dated September 1, 1992. Likewise, there are no records in the Veteran's file that reflect daily therapy for back pain. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a) (West 2014); 38 C.F.R. § 3.159 (c) (d) (2016). Moreover, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, given that all of the Veteran's medical records are not associated with the electronic claims file, a remand is required to secure these records. 38 C.F.R. 3.159(c)(2) (2016). As it relates to the etiology of the Veteran's low back disability, the Board has determined the Veteran's VA February 2016 examination as inadequate to adjudicate the Veteran's claim for the reasons discussed below. The Board's prior remand provided the Veteran a new VA examination in April 2016 to determine whether the Veteran's low back disability relates to service. VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his claim. 38 U.S.C.A. § 5103A (d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2016). The Board's prior remand directives instructed the examiner to acknowledge and discuss the lay statements of the Veteran as to onset in service and to his reports of experiencing low back pain since service. The Veteran has consistently stated his back pain began in service and has had a continuity of back pain since service. In the same September 1992 Medical Record Note referenced above, the Veteran noted that he has had back pain for eighteen years. In a second Medical Record Note in March 1996, the Veteran stated he has had low back pain since 1973 and received physical therapy. See Miami VAMC Medical Record Progress Note dated March 14, 1996. Moreover, the Veteran's wife submitted a statement in which she notes that the Veteran's family and friends all indicate the Veteran "came back with a bad back." See Statement in Support of Claim dated February 2010. The Board recognizes the Veteran is competent to provide evidence regarding observable symptoms of low back pain since he is within the realm of lay experience. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159 (a)(2). For purposes of this remand, the Board also finds these statements to be credible. Therefore, the February 2016 VA examination is deemed inadequate as it simply does not discuss or otherwise reflect an understanding of the lay statements alleging an in-service back injury and continuity of back pain since service. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As a result, another remand is necessary to obtain all of the Veteran's relevant treatment records and to obtain an adequate medical opinion in order to properly adjudicate the Veteran's claim and to ensure compliance with the Board's prior remands. Stegall, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records, to include those from the Miami VAMC prior to 1983, and any other medical evidence that may have come into existence or is identified since the time the Veteran's claim was filed. The efforts to obtain these records must be documented in the Veteran's electronic file. 2. Contact the Veteran and request that he identify all relevant treatment providers, to include the provider that performed physical therapy on the Veteran's back in or prior to 1992. Thereafter, after obtaining any necessary authorization, attempt to obtain and associate with the claims file treatment records identified by the Veteran. 3. Obtain a medical opinion to determine the etiology of the Veteran's low back disability. The examiner should review all pertinent records associated with the file, including the Veteran's service treatment records, post-service medical records and lay statements regarding the onset and continuity of his symptoms and treatment. Following review of the claims file, the examiner should provide an opinion to address the following: a) Is it at least as likely as not (50% probability or greater) or less likely than not (probability less than 50%) that such disability had its onset in or otherwise related to any disease or injury in service? b) Is it at least as likely as not (50% probability or greater) or less likely than not (probability less than 50%) that such disability manifested within one year of the Veteran's military discharge in 1973? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the onset of the disability and the continuity of symptomatology, and comment specifically on whether the Veteran's statements make sense from a medical point of view. The examiner should note that it is symptoms and not treatment that is relevant and must be considered and addressed in the opinion. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A rationale for all opinions expressed should be provided in the examination report. If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion. 4. After completion of the above, readjudicate the claim. If any benefit requested on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ GAYLE E. STROMMEN 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) (2016).