Citation Nr: 1737673 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 11-11 705A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is included in the claims file. In October 2015, the Board reopened and remanded the Veteran's claim for further development to include an addendum opinion. Upon review of the claims file, the Board has determined that further development is required before adjudication can proceed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Outstanding - Service Hospital Records Upon review of the Service Treatment Records, the Board notes that claim file does not include evidence of an attempt to collect Service Hospital Records. As such, the Board finds that VA has not yet fulfilled its duty to assist the Veteran. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). The Veteran's STRs include a notation that the Veteran was in a motor vehicle accident and was admitted into the Martin Army Hospital, in Fort Benning, Georgia on March 11, 1967 and was later discharged on March 24, 1967. There is no evidence that the records for these 13 days in the hospital were collected. It is important to note that the military branches of service define STRs as outpatient treatment records and discharge summaries of inpatient care only. STRs do not include full inpatient treatment records. See VBA Fast letter No. 13-09 (Apr. 26, 2013). Considering the foregoing, the Board finds that the appropriate measures should be taken to collect these service hospital records from Martin Army Hospital in Fort Benning, Georgia. Outstanding - VA Treatment Records In December 1974, the Veteran wrote to VA detailing a motor vehicle accident he was involved in while in service and indicated that he was receiving medication from the "Veteran's hospital." The Board notes that at the time of the correspondence the Veteran was living within the jurisdiction of the Dallas, Texas VA Medical Center (VAMC). The record does not contain any follow-up with the Veteran or indication that an attempt was made to collect these medical records. The Veteran's contention that he was provided with pain medicine to deal with his back disability could be corroborated by these records. As such the Board finds that the duty to assist has not been completed and that the appropriate measures should be undertaken to obtain VA treatment records from the period. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2016) Outstanding - Private Treatment Records In October 2003, the VA dispatched a private request for medical records to a Dr. P. This medical provider informed VA that the Veteran was only seen in consultation while he was in Methodist Medical Center, that no records are kept on patients that do not return to his office, and that all records would be in the Medical Records Department at Methodist Medical Center. Upon receipt of this response, the VA did not further act to collect these records. Thus, the VA did not fulfill its obligation under the duty to assist, and appropriate actions should now be taken to collect these records. Similarly, the VA did not make a reasonable effort in obtaining medical records from Dr. Mathai. In September 27, 2003 VA dispatched a request for private treatment records to Dr. Mathai and did not receive a response. VA did not make a subsequent attempt. See 38 C.F.R. § 3.159(c)(1) (... reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.) October 2015 Addendum Opinion - Inadequate Upon review of the March 2017 VA addendum opinion, the Board finds that a new VA examination is warranted. The VA examiner opined that there was no documented evidence of a back injury in service. However, the examiner does not address the Veteran's statements on an injury to his back that had been made in close proximity to the Veteran separation, in June 1974, December 1974. Both of these complaints he relates to a motor vehicle injury in service. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The Board notes that this VA opinion was created in response to the Board's October 2015 remand directive. As such, the Board finds that the Board's remand directive was not fulfilled and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The AOJ should ensure that all service treatment records and military hospital records from all periods of verified active duty service have been associated with the claims file. In particular, the Board finds that service hospital records from the Veteran 13 day admission to the Martin Army Hospital, Fort Benning Georgia March 11, 1967 to March 24, 1967 should be collected and associated with the claims file. All requests and responses should be documented and associated with the claims file. Any archived records should be retrieved from storage. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Notify the Veteran that the Board is interested in the private medical providers he identified and his August 2003 "Consent to Release Information." In particular, the records from Dr. Paul Mathai, 221 W. Colorado Blvd. Pavilion I Suite 424, Dallas, Texas 75208. Notify the Veteran that in October 2003 Dr. Patel notified VA that any records concerning the Veteran and his care would be located at the Medical Records Department at Methodist Medical Center. As such, the Veteran should be provided and sign any necessary authorization for release of these medical records to VA, and appropriate steps should be made to obtain any records from the Methodist Medical Center. Regardless of the Veteran's response, VA treatment records should be collected from the VA North Texas Health Care System, Dallas, Texas, and Dallas VA Medical Center and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from October 1968 to November 1977. Any archived records should be retrieved from storage. 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. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. Following the above development, schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s) to identify any low back disabilities, and determine the etiology. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of his back disability and any continuity of symptoms since that time. After considering the pertinent information in the record in its entirety, the examiner is asked to opine as to whether it is at least as likely as not )i.e. 50 percent probability or greater), that any identified back disability, to include a large right sided disc herniation with extruded fragment diagnosed in March 3, 2003, began in service, was caused by service, or is otherwise related to service? In providing an opinion, the examiner should comment on: (i) the Veteran's September 2003 contentions that following the motor vehicle in service he was given medicine to deal with the pain; (ii) a December 1974 letter to VA wherein the Veteran wrote that he receives medicine from VA; (iii) a June 1974 VA examination wherein the Veteran complains of lower back pain; (iv) a April 1974 correspondence from the Veteran wherein he relates that he cannot walk very long because of pain; and (v) a notation in the Veteran's service treatment records which indicates that he was admitted into the hospital following the motor vehicle accident and released after 13 days of care. 3. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).