Citation Nr: 1731995 Decision Date: 08/08/17 Archive Date: 08/16/17 DOCKET NO. 14-32 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for residuals of a broken tailbone. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from December 1961 to April 1966. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. During the pendency of this appeal, jurisdiction was transferred to the RO in Salt Lake City, Utah. The Veteran testified at a June 2015 Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the record. In September 2016, the Board denied the instant claims and remanded a petition to reopen a claim for service connection for a cervical spine condition as well as claims for entitlement to service connection for a traumatic brain injury (TBI) and missing teeth to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran subsequently appealed the Board's September 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2017 Joint Motion for Partial Remand (JMR), the Court vacated the Board's September 2016 decision and remanded the instant claims to the Board for further adjudication. The Board notes that petition to reopen a claim for service connection for a cervical spine condition as well as the claims for entitlement to service connection for a TBI and missing teeth remain in remand status as the AOJ has not completed the ordered development actions. Therefore, these issues will not be addressed by the Board at this time. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The March 2017 JMR found that the Veteran had properly identified that he had received in-service treatment at the Naval Hospital in Jacksonville, Florida in May 1963 and instructed that these records be gathered or otherwise accounted for. The Board notes that the AOJ had requested inpatient clinical records from the Jacksonville Naval Hospital in May 1963 relevant to the Veteran's treatment for a neck injury using the Personnel Information Exchange System (PIES). Unfortunately, a June 2017 PIES response indicates that a search of the requested facility for the requested year had yielded negative results. The Board notes, however, that a September 1964 treatment note from the United States Naval Station at Cecil Field reflects the Veteran's reports that he was struck on the right side of the head by a hydraulic tail gate while attempting to unjam it. An impression of a right forehead abrasion was made. During the Veteran's June 2015 Board hearing, he testified that the hydraulic lift gate injury occurred in 1964 and that he was treated at the Naval Air Station in Jacksonville, Florida but that he was not entirely sure of the date. He also testified that an ambulance was called after this incident and that he received treatment that included X-rays of the back. The service treatment records contained in the claims file do not reflect treatment for this incident other than the September 1964 treatment note. Therefore, on remand, a further search for records in September 1964 at the United States Naval Station at Cecil Field and/or Jacksonville Naval Hospital should be conducted. Additionally, the Board notes that in adjudication of disability compensation claims, a VA medical examination must be provided when: (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence which establishes that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Board to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the first two elements of service connection, the evidence required to trigger VA's duty to provide a VA examination need only meet a low bar. See generally id. The Veteran has alleged that his back disorder and residuals of a broken tailbone are the result of the in-service hydraulic lift gate incident. VA treatment record show that the Veteran has reported ongoing chronic pain issues related to his neck, back and tailbone. As complaints of back pain are relevant to both of the claims presently on appeal, and the Veteran has alleged onset from a verified injury during active duty service, the Board finds that there is sufficient evidence of symptoms and an in-service incident to trigger VA's duty to provide the Veteran with VA examinations addressing any back or tailbone injuries he may have sustained or current conditions he may have. Accordingly, on remand the Veteran should also be scheduled for VA examinations addressing the claims presently before the Board. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed back condition and residuals of a broken tailbone. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from March 2017 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Contact the National Personnel Records Center (NPRC) or other appropriate custodian and make every effort to obtain any outstanding service treatment records related to the September 1964 hydraulic tailgate incident at the Jacksonville Naval Hospital and/or Cecil Field Naval Air Station. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 3. Following the completion of the above development, afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed back disorder and residuals of a broken tailbone. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: a) Identify whether the Veteran currently has a back condition and/or residuals of a broken tailbone, or has had such a diagnosis at any time during the pendency of his May 2012 claim. b) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder had its onset during any period of service, or is otherwise related to such periods of service, to include the September 1964 incident involving the hydraulic tailgate. The examiner must provide a complete rationale for all opinions and conclusions reached. 4. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 claims must be afforded expeditious treatment. The law requires that all claims 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. OSBORNE 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).